Rodney Dale Morrison v Roche Mining Pty Ltd

Industrial Relations Commission (NSW)|2007-12-10|Before: Kavanagh J

CITATION: Rodney Dale Morrison v Roche Mining Pty Ltd [2007] NSWIRComm 276

Prosecutor: PARTIES: Rodney Dale Morrison Defendant: Roche Mining Pty Ltd

CATCHWORDS: Charge under s8(1) of the Occupational Health and Safety Act 2000 - defendant company employer of miners - miners working with control of the site under another company - manual roof bolting task - knowledge of soft roof condition - inability to identify applicable existing safe work procedure - untrained employee - knowledge that proper practice for the task not followed - contribution of third party to risk - general and specific deterrence - foreseeable risk - roof fall - fatality - penalty imposed

LEGISLATION CITED: Occupational Health and Safety Act 2000

Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 Department of Mineral Resources of New South Wales) Chief Inspector Bruce Robert McKensey v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 10 CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383 WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Ltd (2002) 121 IR 1 WorkCover Authority of NSW v McDonald's Australia Ltd and anor [1999] 95 IR 383

Prosecutor: Mr M.P. Cahill of counsel Solicitors: Ms M. Rizzo Crown Solicitor's Office LEGAL REPRESENTATIVES:

Defendant: Mr B.D. Hodgkinson SC with Mr M. Shume of counsel Solicitors: Mr G. McCann Sparke Helmore

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

1 This prosecution is brought by Rodney Morrison, the Director, Mine and Forest Safety Performance, Department of Primary Industries against Roche Mining Pty Ltd (the defendant) by way of an Amended Application for Order issued pursuant to s8(1) of the Occupational Health and Safety Act 2000 (the Act). 2 It is alleged in Matter No. IRC2365 of 2006, the defendant company contravened s8(1) of the Act in that it failed to: ensure the health, safety and welfare at work of all its employees and in particular, James Arpine Tautari Adams, Jim Adams and Hamish Lister contrary to section 8(1) of the Occupational Health and Safety Act 2000.

In particular, the defendant: a) failed to provide and maintain a safe system of work in relation to the conduct of the pillar split at the 1-2 cut through in the Kayuga Seam at the Dartbrook Mine ("the pillar split") generally, and more particularly with respect to manual erection of roof support in that it failed to ensure that: i) the Road Header was withdrawn a sufficient distance so as to create a work area of sufficient size in front of the Road Header to allow the roof support to be installed whilst working at all times under supported roof; ii) temporary roof support was erected prior to the commencement of the roof and/or rib drilling process; iii) each roof bolt hole was drilled and bolted, consecutively, across the heading. b) The defendant failed to provide adequate instructions to James Arpine Tautari Adams, Jim Adams, Hamish Lister and Wayne Wallace in relation to the pillar split and in particular regarding the need to ensure that: i) the Road Header was withdrawn a sufficient distance so as to create a work area of sufficient size in front of the Road Header to allow the roof support to be installed whilst working at all times under supported roof; ii) temporary roof support was erected prior to the commencement of the roof and/or rib drilling process; and iii) each roof bolt hole was drilled and bolted, consecutively, across the heading. c) The defendant failed to ensure that an adequate risk assessment was performed with respect to the design and performance of the pillar split prior to the commencement of that work. 3 The defendant pleaded guilty to the charge. 4 Mr M.P. Cahill of counsel appeared for the prosecutor and tendered in evidence an Amended Application for Order, an Agreed Statement of Facts and documents titled: Standard Work Procedure - marked "Draft A"; a Standard Work Practice 9.17 - prepared by Mr M. Coffey, former Occupational Safety and Environment Officer for Roche Pty Ltd and Standard Work Practice 9.18 - prepared by Mr B. Wright of J.R. Wright Consulting Pty Ltd. 5 The defendant was represented by Mr B.D. Hodgkinson SC with Mr M.L. Shume of counsel. The defendant relied upon the Agreed Statement of Facts and the affidavit (with annexures) of Frank Xavier Fulham sworn 20 September 2007. 6 Relevantly, the Agreed Statement of Facts states: 3. The defendant, was an employer. 4. At all material times, the defendant employed workers to work at the Dartbrook Mine near Muswellbrook in the State of New South Wales. 5. At all material times, Dartbrook Mine was both a place of work and a coal mine within the meaning of the Coal Mines Regulation Act (NSW) 1982.

Management, Control and Operation of the Dartbrook Mine 6. At all material times there was a Joint V enture comprising Marubeni Thermal Coal Pty Ltd, Anglo Coal (Dartbrook) Pty Ltd and SsangYong Resources Pty Ltd ("the Joint Venture"). 7. At all material times the Joint Venture held Coal Mining and Coal Exploration Leases, including the Coal Mining and Coal Exploration Leases comprising the colliery known as the "Dartbrook Mine" near Muswellbrook in the State of New South Wales (the "Joint Venture Area"). 8. At all material times Anglo Coal (Dartbrook Management) Pty Limited was a wholly owned subsidiary of Anglo Coal Holdings Australia Limited (ABN 52 079 017 940). 9. At all material times Anglo Coal (Dartbrook Management) Pty Limited ABN 62 007 377 577 ("AC(DM)") was contracted by the Joint Venture to manage, control and operate coal exploration, coal mining and related activities within the Joint Venture area, including management, control and operation of the Dartbrook Mine. 10. In about December 2003 the workings in the Kayuga Seam within the Joint Venture, formerly known as the "Kayuga Mine", were integrated with the workings in the Wynn Seam within the Joint Venture, formerly known as the "Dartbrook Mine". The integrated workings became known as the "Dartbrook Mine". 11. As and from 7 May 2004 AC(DM) assumed statutory control of all parts of the integrated workings. 12. At all material times, Anglo Coal Australia Pty Ltd (ABN 930 760 59679), a wholly owned subsidiary of Anglo Coal Holdings Australia Limited (ABN 520 79 0170 940) employed Daniel Clifford ("Clifford"). 13. At all material times Clifford was appointed as the Mine Manager of the Dartbrook Mine pursuant to section 36(2) of the Coal Mines Regulation Act 1982 (NSW). 14. At all material times Clifford, as mine manager, had full charge and control of all persons employed at the Dartbrook Mine and all operations at the Dartbrook Mine. As mine manager, Clifford's duties and functions included the requirement to enforce the observance by all persons employed at the Dartbrook Mine of the Coal Mines Regulation Act 1982 (NSW), together with any regulations, rules and any schemes and any directions or conditions of exemptions or approvals given under the relevant legislation. 15. Further, at all material times Clifford's duties, as mine manager, included ensuring that the roof and sides or working places and roadways in the mine were adequately supported where necessary for safety. [See: s 37(2)(c)(ii) of the Coal Mines Regulation Act 1982 (NSW).] 16. Further, at all material times Clifford's duties as mine manager included ensuring that officials at the mine were in possession of such information and plans as were necessary to enable those officials to ensure that all operations at the mine for which they were responsible were carried out in a safe manner. [See: s 37(2) (d) of the Coal Mines Regulation Act 1982 (NSW).]

The role of the defendant at the Dartbrook Mine 17. At all material times the defendant was contracted to perform underground mining work at the Dartbrook Mine that was associated with the development of the long wall panel in the Kayuga Seam, together with other underground mining works associated with the integration of the underground workings in the Kayuga Seam with the underground workings in the Wynn Seam. 18. At all material times the defendant employed Frank Fulham as its Project Manager with respect to works being performed underground in the Kayuga Seam. 19. At all material times the defendant employed Douglas Ashcroft ("Ashcroft") as its Production Superintendent with respect to works being performed underground in the Kayuga Seam. 20. At all material times the defendant employed Wayne Wallace. 21. At all material times, Wayne Wallace was appointed by Clifford, in his capacity as the mine manager of Dartbrook Mine, as a Deputy pursuant to section 42 of the Coal Mines Regulation Act 1982 (NSW). 22. At all material times, the defendant employed James Adams as an underground mine worker to work at the Dartbrook Mine. 23. At all material times, James Adams was a member of an underground "development" crew assigned by Ashcroft to a pillar split at the 1-2 cut-through in the Kayuga Seam. 24. At all material times, the defendant employed Jim Adams as an underground mine worker at the Dartbrook Mine. 25. At all material times, Jim Adams was also member of the abovementioned underground "development" crew assigned by Ashcroft to a pillar split at 1-2 cut-through in the Kayuga Seam. 26. At all material times, the defendant employed Hamish Lister as an underground mine worker at the Dartbrook Mine. 27. At all material times, Hamish Lister was a member of the abovementioned underground "development" crew assigned by Ashcroft to a pillar split at 1-2 cut-through in the Kayuga Seam.

Background to the Subject Incident 28. Sometime prior to 26 May 2004, as part of the development work associated with the integration of the underground workings in the Kayuga Seam with the underground workings in the Wynn Seam, a project was developed to split a pillar at the 1-2 cut-through in the Kayuga Seam. 29. The "pillar split" at the 1-2 cut-through in the Kayuga Seam commenced on Day Shift on 26 May 2004. 30. On 26 May 2004 Ashcroft assigned an underground mining crew to commence work on the Pillar Split at the 1-2 cut-through using a Mitsui 200 Road Header. 31. Thereafter, work continued on the Pillar Split at the 1-2 cut-through in the Kayuga Seam on each consecutive shift until the completion of the Night Shift on the morning of 28 May 2004. 32. On 28 May 2004 Ashcroft assigned a day shift crew to continue working on the Pillar Split with the Mitsui 200 Road Header. That day shift crew consisted of: · James Adams - Mitsui 200 Road Header Operator and Steel Handler on the "gopher"; · Jim Adams - "Cable hand" for the Mitsui 200 Road Header and roof bolter; and · Hamish Lister ('Lister") - Eimco Operator and "roustabout"; and · John Daowlis ("Daowlis") - fitter. 33. The roof in the area of the Pillar Split was of sufficient concern for a specific direction to be given at the start of shift meeting held prior to the commencement of work on 26 May 2004. The concerns about the roof in the area of the Pillar Split were such that the development crews working on the Pillar Split were warned to keep cuts to a minimum, to erect one sheet of mesh roof support at a time and to maintain support close to the production face. 34. At the commencement of the Day Shift on 28 May 2004 the roof at the Pillar Split had been bolted to within about 0.5 metres of the face. 35. Further, at the commencement of the Day Shift on 28 May 2004 the heading at the Pillar Split was filled with spoil so that the crew spent the morning up to lunch time "cleaning up the spoil" left by the Night Shift Crew. 36. After lunch on 28 May 2004 the Day Shift Crew returned to the heading at the Pillar Split. Daowlis, the fitter, went to work on the boot end. The balance of the Day Shift Crew then commenced cutting coal:- James Adams operated the Mitsui 200 Road Header; Jim Adams handled the cable; and Lister, the Eimco driver and roustabout, provided general labouring support. 37. When James Adams had cut enough coal for between about "one to two mesh", he stopped cutting coal so that the next round of roof support could be erected. 38. The Mitsui 200 Road Header being used to cut the Pillar Split was not fitted with drill rigs. 39. As there were no drill rigs attached to the Road Header, roof support had to be erected in front of the Road Header, manually. 40. As roof support was to be erected manually, the Road Header had to be reversed back in the heading from the face a sufficient distance to enable the crew to obtain access to the roof in front of the Road Header, for the purpose of manually erecting roof support, whilst remaining behind the last line of previously erected roof support (i.e. working from under supported roof). 41. After James Adams stopped cutting coal, he reversed the Road Header back in the heading, he lowered the cutting head to the floor in the centre of the heading and turned the Road Header off. After the incident, the Dartbrook Mine surveyor established that the Road Header had been reversed back in the heading so that the Road Header's pineapple cutting head was located about 0.2 metres outbye of the last line of previously installed roof bolts. 42. After James Adams had turned off the Road Header, the isolation switch was engaged and both James Adams and Jim Adams "tagged out" the machine. 43. James Adams, Jim Adams and Lister then proceeded to carry the roof bolting equipment and materials inbye of the Road Header so that the next line of roof support, consisting of mesh and roof bolts, could be erected. 44. Once the roof bolting equipment and materials were in place, inbye of the Road Header, Jim Adams started the manual roof bolter and commenced boring holes in the roof of the heading for the roof bolts. 45. The Mine Manager's Support Rules for the Kayuga Seam, said to be applicable to the Pillar Split being performed at the time of the subject incident, provided for a 4/2 bolting pattern in the roof of the heading. The last line of roof support erected in the heading consisted of mesh held in place by two roof bolts so that the next line of support required by the Rules was to consist of mesh and four roof bolts drilled in across the heading. 46. Prior to the subject incident, Jim Adams bored three roof bolt holes into the roof of the heading starting from the left side of the heading looking inbye. But, no roof bolts were inserted into any of the three roof bolt holes bored by Jim Adams into the roof of the heading prior to the subject incident. Immediately prior to the subject roof fall, Jim Adams commenced drilling a fourth hole in the roof of the heading immediately adjacent to the right hand side of the heading looking inbye. 47. Jim Adams was still in the process of drilling the fourth hole, immediately adjacent to the right hand side of the cut-through looking inbye, when the subject roof collapse occurred. 48. It is unclear when and where James Adams was last seen prior to the subject roof fall. 49. However, when interviewed, Jim Adams stated that he last saw James Adams on the left hand side of the heading (looking inbye). But, Jim Adams did not know and could not say what James Adams was doing at the time of the subject roof fall. 50. Immediately after the roof fall, Jim Adams and Lister realised that James Adams had been struck by part of the roof fall and was trapped beneath fallen stone in the vicinity of the pineapple cutting head of the Road Header, which had been lowered to the floor near the centre of the heading. 51. James Adams suffered serious injury as a consequence of the fall and died a short time later as a consequence of those injuries.

Investigation of the subject incident 52. After the event, investigations established that: · The roof fall extended from the coal face back inbye towards the last series of roof bolts; · The fall occurred, essentially, across the full width of the heading; · On the right hand side of the heading, looking inbye, the roof fall terminated at the last series of roof bolts; and · On the left had side of the heading, looking inbye, the roof fall terminated approximately 200mm in front of the last line of roof bolts. · The height of the fall was not uniform. It was thin at the edges, particularly inbye, and rose up to an estimated height of about 1 metre in a dome shape which had its acme located, approximately, in the centre of the heading (i.e. in the vicinity of the pineapple cutting head of the Road Header). 53. Further, no roof bolts had been inserted into any of the three roof bolt holes that Jim Adams had "pre-drilled" across the heading as part of the manual erection of the next line of roof support that was taking place immediately prior to and at the time of the subject roof fall. 54. Further it was established that Wallace, in his capacity as a deputy appointed for the Dartbrook Mine, was assigned statutory responsibility for the area in which the "pillar split" was being performed for the Day Shift on 28 May 2004. Also, as the deputy assigned to that area, Wallace was to supervise the development crew working on the "pillar split" during his shift. 55. Further, when questioned after the event, Wallace stated that he was present in the heading shortly before the roof fall and that he saw the location of the Road Header after James Adams had reversed the Road Header back from the face to enable the next line of roof support to be erected. 56. When questioned after the incident about the location of the Road Header in the heading whilst roof support was being erected, Wallace stated that "[he] would have liked to have seen it normally further back than that". Nonetheless, Wallace gave no direction to any member of the crew regarding the location of the Road Header immediately prior to at the time the crew commenced work on the erection of the next line of the roof support. 57. Further, when Wallace was questioned after the event, he said he had seen Jim Adams "pre-drilling his holes" on occasions prior to 28 May 2004. Wallace was aware that Jim Adams' "system" was to "pre-drill his holes" when erecting roof support, (i.e. Jim Adams drilled a series of holes in the roof before inserting roof bolts into the holes, rather than inserting a roof bolt as he completed drilling each hole.) Wallace did not provide Jim Adams, or any other member of his crew, with directions regarding the "system" adopted by Jim Adams with respect to the "pre-drilling" of holes for roof bolts prior to or on the day of the subject incident. The transcript of Wallace's interview on 11 June 2004 records the following series of questions and answers: Q67 For the purposes of the interview can you tell me, so that it makes sense on the interview rather than looking at the --- A. All right. What I observed was Jimmy was predrilling his holes. On the occasions I went in there I watched them predrilling their holes. I was only there with them for the two days and I never observed them once pushing it to the roof. I am not sure whether they pushed it up with a bolter or lifted it by hand. Then I was there when I was installing their bolts. But I never observed them once how they actually pushed it to the roof. Q68. You said that you saw them predrilling their holes. Does that mean they had drilled a number of holes in preparation for rock bolting? A. I observed him drilling his four holes. He had a system where he drilled his four holes. They then lifted, pushed the mesh to the roof, inserted their bolts and then he drilled and installed the front two bolts. Q69. So if I am quite clear on this; four holes would be drilled before any rock bolts were placed in those holes? A. That's what he done when I observed him. Q70. Was that a normal practice? A. No. Q71. Did you ever discuss with them that practice? A. No. When Mr Wallace was interviewed on 15 October 2004, the following exchange was recorded: Q22. I refer you to question 71 of your record of interview on 11.6.04 where you were asked "did you ever discuss with them that practice" and you answered "no" why didn't you discuss their drilling practice if it was not a normal practice? A. I said at the time it was a system they were used to. I think I also said somewhere else that at no stage did I see them out under unsupported roof.

Further, on 28 May 2004, following the subject roof fall, an inspection of the "Deputies' Notice Board" at the entrance to the area of the mine in which the roof collapse occurred established that the following documents were on display prior to and at the time of the subject incident: · Roof support plans entitled "Kayuga Seam Support Rules" Plan No. 62105 signed by D. Sykes - Manager on 30 May 2002 confirmed by Senior Inspector Anderson on 31 May 2002; · Roof support plans - entitled "Gate Road Support Rules - Option 1 - Kayuga Seam" signed by D. Sykes - Manager on 22 May 2003 confirmed by Senior Inspector Anderson on 11 June 2003; and · A Risk Assessment Document dated 12 December 2002 relating to the Mitsui 200 Road Header. 59. Further, both AC(DM) and the defendant maintained that the Risk Assessment dated 12 December 2002 with respect to the Mitsui 200 Road Header, referred to above, was a risk assessment applicable to the use of the Road Header in the cutting of the Pillar Split that was being undertaken at the time of the subject incident. But, it is common ground that the subject risk assessment had been developed in and about December 2002 during of the planning of a drift decline that formed part of the development works necessary to the introduction and establishment of longwall mining equipment in the Kayuga Seam. 60. Further, investigations after the event also established that Jim Adams had been employed as an underground mine worker by the defendant for about 18 months prior to the subject incident. During that period both James Adams and Jim Adams had worked for the defendant underground in the Kayuga Seam, working principally on crews assigned to the cutting of a Drift Decline with the Mitsui 200 Road Header. 61. Further, during the abovementioned period, Jim Adams had undergone training, including commencement of training as a manual roof bolter operator. But, Jim Adams did not complete the training and assessment necessary for appointment as a roof bolter prior to the subject incident. 62. Further, it is alleged that the defendant did not develop, provide and/or implement a safe work procedure with respect to the Pillar Split, including but not limited to a standard work procedure or system with respect to the erection of roof support in the conduct of the Pillar Split. 63. Further to the above, when interviewed after the event, Jim Adams stated that he had not been required to attend and had not attended any crew tool box meeting at which the procedures to be followed in respect of the Pillar Split, including procedures with respect to the set up of the Road Header for the pillar split, the design of the split and/or the manual erection of roof support in front of the Road Header during the pillar split were presented and/or discussed. 64. During the course of the investigations conducted by Inspector Alwyn Piggott, Inspector Piggott sought, from both the defendant and from Anglo Coal (Dartbrook Management), all documents purporting to set out the safe work methods with respect to hand roof bolting that applied to and were to be implemented during the course of the subject pillar split. The following documents were subsequently produced by the defendant: i) Standard Work Procedure - Erection of roof support in front of continuous miner or Road Header - underground coal; ii) Kayuga - Standard Work Practice: Hand bolting procedure underground coal; iii) Standard Work Practice - Hand bolting procedure underground coal, SWP KAY 37.

During the course of the investigation the second document, "Kayuga - Standard Work Practice - Hand bolting procedure underground coal" was identified as the safe work procedure, allegedly, in place at the time of the subject incident and applicable to manual roof bolting in front of the Mitsui 200 Road Header during the pillar split. But, even though this document was identified as the generic Kayuga Standard Work Practice which was allegedly in force at the time of the subject incident; this document was not used in pre-shift tool box meetings to instruct the crews in the safe work method to be followed during the pillar split; a copy of this document was not available at the work site; nor was the procedure set out therein being followed prior to or at the time of the subject incident; and the procedure set out therein had not been followed, in particular, with respect to the erection of temporary roof support, on any other working shifts in which manual roof bolting had taken place in the course of the development of the cut-through. Relevant Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. In that case, their Honours were of the view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999)). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor. The court could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 9 Proper regard is had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health, safety and welfare at the workplace. Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing. Consideration 10 The court must assess the objective seriousness of the offence or, as the Full Bench said, "the nature and quality of the offence" (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). 11 The defendant company was a contractor on site whose employees were working at a mine under the control of another company, the Leasee of the mine, Anglo Coal (Dartbrook Management) Pty Ltd (also prosecuted - see IRC2367 of 2006). The defendant's employees were performing underground mining work at the Kayuga Mine near Muswellbrook in New South Wales. On 28 May 2004, the date of the incident, in undertaking a "pillar split" at the 1-2 cut-through, the shift crew were working on the task of the "manual erection" of roof and rib supports. A Road Header vehicle was being used to perform the task. It is usual for a Continuous Miner machine, which has roof bolting and drill head mechanisms attached to it, to perform this task. However, the Road Header machine was chosen because the company who operated the mine, Anglo Coal (Dartbrook Management) had wanted to keep an access roadway open and not fully blocked off while the pillar split was performed. The use of a Continuous Miner would have blocked the access roadway. Further, the defendant's Continuous Miner machines were leased under contract and had been returned. So the determination to roof bolt by "manual" means was convenient to both the Mine Manager and the defendant company performing the mining work. 12 The incident occurred on 28 May 2004. Anglo Coal (Dartbrook Management) had taken back control of the Kayuga mine from Roche in December 2003. Management of both the defendant company and Anglo Coal (Dartbrook Management) had been at the pillar split site. Both parties knew the roof of the mine was "soft" and precautions had been put in place. Further, roof bolting, even "manual" roof bolting, is a basic skill required from miners. However, the experienced miner performing the task of roof bolting did not have the appropriate training for the task he was required to perform. 13 The proper practice for manual roof bolting requires a hole to be bored and the roof bolt to be immediately inserted into the hole. The practice adopted by this miner was to pre-drill up to four roof holes before inserting the roof bolts. That is, he pre-drilled the holes and failed to insert immediately a bolt into each hole. The deputy in charge, also an employee of the defendant company, had seen the roof bolting operation being performed and not in accordance with the proper practice. The deputy failed to correct this system of drilling and bolting for roof support. 14 The miners had been warned at the start of the shift meeting the depth of the cut was to be kept to a minimum and the bolts be placed close together as a safety precaution. Further, on examination after the incident, the shift deputy was of the view that, at the time of the incident, the Road Header machine had not been reversed back from the face and in the heading sufficiently far enough to allow the miners enough space in front of the machine to carry out the task of drilling and bolting the next line of roof support. On the drilling of a fourth hole, the roof fall occurred. 15 The deceased was caught under the roof collapse. No other of the crew were injured as it appears they had been working beneath the supported roof. 16 After the incident, a search was made for the appropriate risk assessment and safe work method for the task. While I am satisfied through the meetings and shift reports there was a risk assessment conducted on the site, three separate documents were produced and no identification could be made by the defendant company as to the relevant safe work practices for "manual roof bolting". There was no safe working procedure for the pillar split which was an extra task undertaken by the defendant company after completing its major obligations under its contract with Anglo Coal (Dartbrook Management). 17 The risk of a roof fall in association with underground mining is a well known risk in the mining industry. The failure to rigorously adopt proper practice and to ensure the thorough training and instruction of all the crew in drilling and bolting holes in a manual roof support procedure makes the risk obvious. There were some standard work practice documents produced, but could not be related specifically either to the task nor were they presented in instructions to the mining crew. The pillar split was being conducted without a designated safe work method. 18 It was submitted by the defendant that in any assessment of the objective seriousness of the offence, the responsibility for this breach does not fall solely on the shoulders of the defendant. That fact, of itself, the defendant submitted, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offence of this defendant and thus the penalty which should be imposed in relation to the charge. The defendant submitted differing levels of criminality must be taken into account and be properly reflected in the respective penalties to be imposed. 19 In the circumstance, I allow mitigation for the contribution of a third party to the risk. The defendant company, as the employer, could not identify the relevant safe work practice for manual roof bolting nor the design of the safe work procedure for the pillar split. Anglo Coal (Dartbrook Management) (also facing prosecution) having assumed "control" of the mine, also carried some of the burden for not ensuring such procedures existed. Further, the failure to ensure the employees all had the appropriate training is a failure by both corporations and contributed to the risk. 20 I find there was therefore a contribution to the risk by the third party who had management control over the place of work (see WorkCover Authority of NSW v McDonald's Australia Ltd and Anor [1999] 95 IR 383 per Walton J, Vice President (at 434 & 437) and Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 Per Walton J, Vice-President at [61]). 21 In a circumstance where the defendant had the knowledge of the poor state of the roof, where the safe work practices for the manual roof bolting procedures were not followed (and this was known to the defendant) and where there was a lack of training of the relevant employee, I am satisfied there was a reasonably foreseeable element to the offence which results in the offence being perceived as more serious in its nature (Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8). 22 The charge for which the defendant is brought before the Court and to which it pleads guilty is "the offence". Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 re-iterated at [43]: . . . the penalty is fixed for the offence found to have been proven. It is, therefore, to the offence itself to which attention is to be directed and not . . . the occurrence of the accident and the contribution of other persons for what occurred. (emphasis added) 23 The above facts therefore establish the defendant failed to provide a safe system of work as an employer by: failing to ensure the Road Header allowed room for work under roof support; failing to ensure the proper procedure was followed for manual roof bolting; failing to provide adequate instruction or training of the relevant miner in the safe work practice procedures required. The defendant pleads guilty to two other particulars: · a failure to erect temporary roof support - this failure arises from the failure to back up the Road Header sufficiently to allow safe working under roof support; and · a failure to ensure an adequate risk assessment with respect to the design and performance of the pillar split. The essential failure was not that there was no risk assessment (the soft state of the roof was acknowledged) rather, in recognition of that fact, there was a failure to put in place a specific work safe procedure for the work in the pillar split. 24 In a consideration of penalty, elements of both specific and general deterrence are relevant. The Full Bench dealt with issues of general and specific deterrence in Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 6010 at [71]-[80]. In particular, the court noted: [76] . . . The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. . . . [77] In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender… or because the offender would not have the opportunity to commit a similar offence in the future .... However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risks to the safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur by commission or omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace.

While the company is no longer working in underground coal mining, it is still operating as a mining company. The company works with heavy equipment above ground and in the mining industry. It employs miners in such a capacity that an element of specific deterrence is factored into penalty. 25 General deterrence is also an element for consideration. The circumstances of this case reveal the need for constant vigilance and the rigorous implementation of safe work practices in even the most basic mining tasks. The mining industry is once more reminded of the inherently dangerous nature of its work and the need for proportionate rigor in the manner in which it carries out every aspect of its mining operations. Even in a circumstance where a basic skill is required in the performance of the task, rigorous application of safe working procedures must be ensured. Training is therefore an essential element of a safe work system. 26 A significant number of documents were placed before the court through an affidavit of Francis Xavier Fulham, the General Manager Operations of Downer EDI Mining Pty Limited. Downer EDI Mining Pty Limited is but another name of Roche Mining Pty Limited and at the time of the incident Mr Fulham held the position of Project Manager for Roche Mining Pty Limited at Kayuga. He opined as to the significant expenditure by the company in its redesign of a safe work method. In the changeover and absorption of the Kayuga seam into the Dartbrook Mine, existing safe systems of work designed by Roche but absorbed into the Dartbrook operation needed revising and co-ordination. Hence, the company produced three standard safe work methods allegedly related to roof bolting on the one seam. 27 There now exists a comprehensive safe work method system for Roche employees. I am satisfied attention has been given to ensure existing work practices have been upgraded. The court is now assured that appropriate regard has been had to the serious deficiency exposed in the existing systems and all employees have been retrained. The system itself has been refined. 28 Some challenge was raised by the prosecutor to the expression of remorse by the company. The prosecutor submitted there was no evidence of either remorse or contrition and drew a distinction between an expression of regret about the occurrence of the subject incident and the tragic outcome of the incident. However, I reject this submission. I find there has been expressed the appropriate remorse and contrition following the occurrence of the said incident. Responsibility has been accepted. I am satisfied the corporation attended to the needs of the family after the employee was fatally injured. 29 It is common ground that the defendant co-operated in the Department's investigation of the incident. The defendant has a good safety record in a dangerous industry and there are no recorded convictions. The defendant is therefore entitled to the leniency of the court appropriately given to a first offender (s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999). 30 The evidence of Mr Fulham persuades the court the company is also a good corporate citizen. In penalty there is recognition given to its good industrial character and its fine corporative citizenship. 31 The court has knowledge that there is a prosecution against a third party, Anglo Coal (Dartbrook Management) Pty Ltd. The prosecutor relies on the application of the principles of parity. It submits that due to a prior conviction, Anglo Coal (Dartbrook Management) will face a maximum penalty of $825,000 and is not entitled to any leniency. A defendant in person, the Mine Manager and employee of Anglo Coal Australia Pty Ltd, a company associated with Anglo Coal (Dartbrook Management), has also been charged with a breach of the Act. The applicability of the principles relevant to the breaches of the Act brought against Anglo Coal (Dartbrook Management) and the individual defendant require consideration at a later date. It is difficult to apply consider any principle of parity at this stage when no evidence is before me as to the particulars of the charges brought against Anglo Coal (Dartbrook Management) who had assumed management of the mine and ultimate control over the worksite. Such a submission as to parity will be more applicable when the latter pleas are heard. However, as already determined the contribution to the risk by that third party is relevant to, and has been addressed in, the determination as to the objective seriousness of the offence. 32 I accept the defendant co-operated with the investigation. 33 The defendant relies upon the authority of R v Thomson; R v Houlton (2000) 49 NSWLR 383 to submit it is eligible to receive a deduction for the utilitarian value of the plea. Such discount is offered in recognition of the practical conditions to the administration of justice (see WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Ltd (2002) 121 IR 1, per Walton J, Vice President at [73]-[75]). The range of discount for an early plea of guilty is in the 10-25 percent range. The upper end of that range is usually reserved for cases where the plea was entered at the earliest reasonable opportunity. The plea was entered after an amended charge was filed. The court had set aside 14 days for the hearing. The Amended Application for Order and the plea were filed, and the days vacated, three and a half weeks before the hearing. In such a circumstance, there was some frustration of the valuable use of court's time. Accordingly, I allow in the circumstances a 20 per cent deduction for the utilitarian value of the plea. 34 Nonetheless, the plea has value in the circumstance and the defendant has accepted its responsibility, which has been accompanied by the appropriate expression of regret and contrition. The plea of guilty reflects this. A penalty must be fixed which reflects the matter was a serious breach of the Act but not a worst case. The defendant is further credited for its co-operation with the prosecutor in the particular circumstances of this prosecution. 35 I find the defendant guilty. 36 The defendant is fined in the sum of $180,000.

Orders Accordingly the Court makes the following orders: 1. In Matter No IRC2365 of 2006, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $180,000 with a moiety to the Department of Primary Industries. 3. As there has been no agreement between the parties as to the quantification of the costs, I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

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.

Coal Mines Regulation Act 1982(NSW)

(2000) 49 NSWLR 6010

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (1)

Cases Cited (10)

Cited By (1)