Rodney Morrison v Anglo Coal

HEARING DATES: 11/03/2003 DATE OF JUDGMENT: 11/19/2003

Mr M Cahill of counsel SOLICITORS PricewaterhouseCoopers Legal

LEGAL REPRESENTATIVES: DEFENDANT Mr R Buchanan QC with Mr Shume of counsel SOLICITORS Sparke Helmore

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

19 November 2003 Matter No. IRC 2262 of 2001 Rodney Morrison v Anglo Coal (Dartbrook Management) Pty Ltd Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 397

1 This prosecution under s 16(1) of the Occupational Health and Safety Act 1983, arises out of the same incident dealt with by the Court in Rodney Morrison v Tecrete Industries Pty Ltd [2003] NSWIRComm 371. Tecrete Industries had supplied its employees to perform work at the Dartbrook Mine, including work associated with sealing excavated areas. In January 1997, two employees of Tecrete and an employee of another sub-contractor were erecting palletised fibercrib blocks using a front end loader fitted with a forklift attachment in the course of providing roof support and sealing an area of the mine. Difficulties were encountered in this operation and in the course of attempting to stabilise the blocks and place them in conformation, the front end loader, when being placed in the down position, clipped the base on which the blocks had been placed and they collapsed, killing Mr Rich, an employee of Tecrete Industries.

2 In earlier proceedings the defendant and Tecrete Industries had challenged the jurisdiction of the Commission to deal with each prosecution, claiming that neither prosecution was authorise in accordance with the provisions of the Act and that the terms of each prosecution had not been authorised in accordance with the requirements of the Act. Those challenges were dismissed (see Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd [2002] 116 IR 252. The matter was then mentioned on a number of occasions before a plea of guilty was entered in July 2003. On that occasion the prosecutor filed in Court an amended application for order which essentially named the defendant as the operator of the mine (rather than the owner and operator) and deleted two particulars of the charge. Under the amended application the failure particularised was a failure to ensure that the operating procedure for the machine stacking of "palletised" fibercrib blocks, that Brendan Ryan directed Raydon Rich, Michael Ham and Dean Ling to utilise, was safe for their use and without risk to their health and/or safety.

3 The parties, for the purpose of the plea, produced an Agreed Statement of Facts, with the immediately relevant terms being as follows: … 3. At all material times, the Defendant was the operator of a coal mine known as the Dartbrook Colliery, located on Stair Street, Kayuga in the State of New South Wales.

At all material times, the Defendant sub-contracted the construction of underground seals and ancillary roof support to Tecrete Industries Pty Limited ("Tecrete").

At all material times, Tecrete supplied the services of its employees including Raydon Rich and Michael Ham, to work on the construction of underground seals and ancillary roof support.

At all material times the Defendant obtained the services of supplementary workers on sub-contracts from United Mining Services Pty Limited t/as United Mining Support Services ("UMSS"). Pursuant to that arrangement and at all material times, UMSS employed Dean Ling as a mining support worker and placed Mr Ling at Dartbrook Colliery.

On 20 January 1997 a fibercrib roof support was in the process of being erected, in accordance with a work procedure developed by the Defendant and at the direction of the Defendant's employee, Brendan Ryan, underground in the Dartbrook Colliery at Cut Through 18 when the partially constructed fibercrib stack collapsed to the ground. At the time of the collapse Dean Ling was in the process of using an Eimco front-end loader fitted with a forklift attachment to position palletised fibercrib blocks supplied by Pioneer Building Products Pty Limited. Raydon Rich and Michael Ham were also working on the construction of the fibercrib stack at that time.

As a consequence of the fibercrib stack collapsing, Raydon Rich sustained fatal injury.

An inspection of the accident site was undertaken by the Investigation Team at 5.15pm on the day of the incident. A further inspection of the accident site was undertaken by the Investigation Team on 21 January 1997. Photographs were taken by members of the Accident Investigation Team in the course of both investigations.

Following its attendance at the incident site, the investigation team concluded that the most probable cause of the accident was inadvertent contact between the driver's side tyne of the forklift attachment to the Eimco and one of the bottom timber packers, used to pack a pallet, that was protruding from the base of the fibercrib stack. The inadvertent contact between the tyne and the bottom timber packer causing the stack to become unstable and then topple over.

In a report prepared on behalf of the Defendant, entitled "Report into Raydon Rich Fatality at Dartbrook Mine, 20 January 1997", the author made the following observation: "The DS Eimco tyne had lowered onto the DS sleeper protruding between the base and the first fibercrib (sic) block causing the stack to topple".

The Defendant had retained the services of Tecrete Industries Pty Limited ("Tecrete") to build underground seals and ancillary roof supports at the Dartbrook Colliery. Tecrete had been undertaking work of this kind at Dartbrook for a significant period (i.e. about eighteen months) prior to the subject incident. The specific contract appears to be "Longwall Seal No. 1: Contract Z1010" dated 12 August 1996. Pursuant to that contract Tecrete stationed a number of its employees at Dartbrook Colliery to work underground on the installation of Tecrete seals and ancillary roof supports in association with the advance of the Longwall.

Rodney Moylan was employed by Tecrete to oversee the work performed by Tecrete employees.

The ancillary roof support initially installed in combination with the Tecrete underground seals consisted of "wooden cribs". Then, in about August 1997, the Defendant commenced investigation of a new roof support system to be installed in combination with the Tecrete seals. Initially, the Defendant chose fibercrib blocks manufactured by Pioneer Building Products Pty Limited.

Pioneer Building Products Pty Limited supplied the Defendant with a standard operating procedure. This standard operating procedure called for the manual installation of fibercrib blocks as roof support.

In September and October 1996 the Defendant sought to develop a system for the machine stacking of pallets of fibercrib blocks, called "60 packs", using an Eimco front-end loader fitted with forklift tynes. The Defendant developed a working procedure entitled "installation of Fibercrib Supports with Eimco" dated 10 October 1996.

The Defendant encountered problems with the "machine stacking procedure" as the tynes of the Eimco forklift attachment were too thick for the opening in the pallets on which Pioneer Building Products Pty Limited delivered its fibercrib blocks.

As a consequence of the difficulties encountered by the Defendant in the machine stacking of "palletised" fibercrib blocks, the Defendant reverted to handstacking the fibercrib blocks into roof support cribs in accordance with the safe operating procedure for manual installation of fibercrib blocks prepared by Pioneer Building Products Pty Limited.

From about September or October 1996, contractors were involved in the construction of fibercribs, including Tecrete employees and underground support workers employed by United Mining Services Pty Limited.

In late 1996, Michael Ham and Raydon Rich, two underground support service labourers employed by Tecrete, were stationed by Tecrete at the Dartbrook Colliery to work on the construction of Tecrete underground seals and ancillary roof supports.

In early January 1997, Michael Ham and Raydon Rich were taught by Rodney Moylan to build fibercrib roof support by hand.

At this time Michael Ham and Raydon Rich were also supplied with copies of the Dartbrook "machine stacking" procedure dated 10 October 1996.

Neither Michael Ham nor the deceased, Raydon Rich, received adequate training or gained experience in machine stacking palletised fibercrib blocks using an Eimco fitted with a forklift attachment prior to the date of the subject incident.

Dean Ling, an employee of UMSS Pty Limited was placed at Dartbrook Colliery commencing on 29 May 1995. Initially Mr Ling worked as support staff and subsequently, he was directed by the Defendant to work with Tecrete employees on the construction of underground seals and ancillary roof support.

In late 1996, the defendant trained Mr Ling as an Eimco driver and on 19 December 1996 the manager of the Dartbrook Colliery, appointed Mr Ling to operate the Defendant's EJC130 Eimco LHD front-end loaders, together with their attachments. 26. Prior to 20 January 1997, the Defendant ordered new palletised "60 packs". The Defendant asked Pioneer to supply the "60 packs" on pallets that had been altered to accommodate the forks of the forklift attachment used with the Defendant's Eimco. Pioneer delivered the new "60 packs" stacked on altered pallets in January 1997 and the new 60 packs on the altered pallets were used for the first time on the day of the subject incident, 20 January 1997.

After Mr Ling was appointed to operate the Defendant's Eimco's, he was directed to provide support services, including services as an Eimco operator, to Tecrete employees.

On 20 January 1997, Brendan Ryan, a Mining Engineer, employed by the Defendant, directed Dean Ling, Michael Ham and Raydon Rich to machine stack "palletised" fibercrib blocks in accordance with the Defendant's operating procedure. According to both Mr Ling and Mr Ham, they expressed disquiet to Mr Ryan about doing machine stacking of palletised fibercribs. Mr Ling and Mr Ham both maintain that they told Mr Ryan that they wanted to continue handstacking the fibercribs rather than to undertake machine stacking of the palletised fibercribs using the Eimco fitted with a forklift attachment.

Nonetheless, Mr Ryan directed Mr Ham, Mr Rich and Mr Ling to proceed underground to Cut Through 18 and to machine stack fibercribs.

Mr Ham and Mr Rich went underground to Cut Through 18 and began to prepare the area. Mr Ling drove underground on an Eimco and brought with him the fibercrib "60 packs", together with other materials to be used in the proposed work.

After Mr Ling arrived at the Cut Through, Mr Ling, Mr Ham and Mr Rich prepared the base for the fibercrib stack as shown by Mr Moylan.

Once the base for the fibercrib stack had been completed, Mr Ling used the Eimco fitted with the forklift attachment to position a "60 pack" on the base.

Once the first "60 pack" was in position, Mr Ling, Mr Ham and Mr Rich inserted three wooden sleepers into the tyne spaces of this pallet. The sleepers had to be hammered into place and at least one of the sleepers protruded from the "Eimco side" of the stack.

Mr Ling then attempted to collect a second "60 pack" but the straps on this "60 pack" failed, allowing the fibercrib blocks to fall off the pallet.

After the failure of the second "60 pack", Mr Ling, Mr Ham and Mr Rich had to clear the fibercrib blocks out of the path of the Eimco before they could return to machine stacking the "60 packs".

After the fibercrib blocks from the broken "60 pack" had been cleared from the path of the Eimco, Mr Ling, Mr Ham and Mr Rich returned to machine stacking the "60 packs". Mr Ling successfully positioned a second "60 pack" on top of the first "60 pack" that had been positioned directly on the base.

After the second "60 pack" was in position on the stack, Mr Ling, Mr Ham and Mr Rich inserted timber sleepers into the tyne spaces of the second pallet. These sleepers were hammered home until flush on the "Eimco side".

Mr Ling then sought to position a third "60 pack" using the Eimco fitted with the forklift attachment. Mr Ling had difficulty centering the third "60 pack" because of the position of the stack and the physical characteristics of the Cut Through.

Mr Ling reversed the Eimco and discussed the next step with Mr Ham and Mr Rich. It was decided to try and use one of the tynes to lift the edge of the third "60 pack" and then "square it up" on the stack.

Mr Ling then attempted to square up the third "60 pack" in the manner described but the stack appeared to become unstable.

Mr Ling reversed the Eimco and further discussions took place between the crew. It was decided to attempt to adjust the third "60 pack" for a second time. On this occasion the tynes on the forklift attachment were manually adjusted to try and improve access to the third "60 pack".

When Mr Ling attempted to square up the third "60 pack", the stack again became unstable.

Mr Ling then decided to withdraw the tynes and reverse the Eimco.

Mr Ling withdrew the tynes, reversed the Eimco and dropped the forklift attachment, the tynes of the forklift contacted the wooden sleeper at the base, de-stabilising the stack. Mr Ham saw that the stack was beginning to fall towards Mr Rich, who had stepped between the stack and the front of the Eimco.

The fibercrib blocks fell towards Mr Rich striking him on the back of the head and knocking him against the front of the Eimco.

Mr Rich received massive head injuries and died instantly.

Mr Ling, Mr Ham and Mr Rich did not receive adequate training or instruction in the Defendant's operating procedure for the machine stacking of "palletised" fibercrib blocks prior to 20 January 1997.

On 20 January 1997 whilst undertaking the machine stacking of palletised fibercrib blocks using an Eimco fitted with a forklift attachment, Mr Ling, Mr Ham and Mr Rich received inadequate supervision for that task.

4 Besides tendering photographs to assist in understanding the eveidence, the prosecutor also read the affidavit of Mr Rodney Moylan who in January 1997 was employed by Tecrete Industries as a state supervisor. He stated that his position as state supervisor was to co-ordinate the workforce employed by Tecrete at various mines and that he was responsible for overseeing rosters, equipment and supplies. He provided supervision to Tecrete's workforce and also liaised with management at the mines where Tecrete stationed its employees. There were five principal contracts held by Tecrete, one of which was with Dartbrook Colliery.

5 In addition to general supervision he provided, Tecrete had a "mine supervisor" at each site providing on-site supervision from day to day to Tecrete's employees. At the end of 1996 and in early 1997, Mr Melmath was Tecrete's mine supervisor at the Dartbrook Colliery.

6 In early January 1997, Mr Moylan visited Dartbrook Colliery and met Brendan Ryan whom he described as an engineer employed by Dartbrook. At no time in January 1997 did Mr Ryan or any other representative of Dartbrook inform him, in writing or otherwise, that Dartbrook proposed to re-commence machine stacking 60 packs of fibercrib chocks. He stated that in particular no one informed him that Dartbrook proposed to recommend recommencing machine stacking 60 packs of fibercrib chocks using Tecrete employees including employees Mr Ham and Mr Rich. Prior to attending at the incident site on 21 January 1997 Mr Moylan did not know that Mr Ham, Mr Rick and Mr Ling had been attempting to machine stack 60 packs at the time of the fatal incident.

7 For the defendant evidence was given by Mr Hobson, general manager of the company. He had commenced employment with Anglo Coal Australia Pty Ltd in July 2003 and had been appointed as general manager of Dartbrook Mine which was managed by Anglo Coal (Dartbrook Management) Pty Ltd, the defendant in these proceedings. Mr Hobson had a number of years in mine managerial positions. Because of his recent appointment the evidence he was able to give was derived from business records and discussions.

8 The Dartbrook mine site had been completed in 1996. The mine produces over 3.5 million tonnes of high quality thermal coal per year and is conducted underground using a long wall and development method. Dartbrook mine employed approximately 212 people and approximately 100 contractors as required.

9 In relation to its commitment to safety of its employees, Mr Hobson said that there was a current operating budget of $700,000 per annum and in addition $1,726,000 had been spent on capital expenditure for safety. In oral evidence Mr Hobson explained that the $700,000 figure were related to employees and safety equipment while the $1,726,000 figure related to major plant primarily emergency escape systems, underground tracking systems and monitoring systems.

10 Mr Hobson explained in straightforward terms the system of long wall mining stating that the final phase involved permanently preventing access to the void created by long wall mining, known in the industry as "the goaf". He stated that the goaf contains fallen ground and various gases and also contained strata which had been weakened but had not yet collapsed. Because of these hazards access to that area was not permitted: preventing access to the goaf area involved the construction of a wall or seal. The seal was built upwards from the floor to the roof and extended from side to side. Seals were made of various types of material depending on the manufacturer and site-based requirements. To protect the seal, reinforcement or secondary support was installed on the non-goaf side. Once this had been installed the mining system was complete.

11 Mr Hobson explained that originally timber cribs were used to provide the required roof support to the seals but had been replaced by fibercrib blocks because they provided stronger support for the roof and would make the work safer. Prior to the selection of the fibercrib blocks technical information was provided by the suppliers and a representative had visited the site and performed an underground inspection. It was in these circumstances that the use of "60 pack" was recommended. The representative also provided information to Mr Ryan and representatives of Tecrete regarding the installation of fibercribs. The method of stacking the fibercrib blocks using the Eimco frontend loader was developed by Dartbrook's mining engineer, Mr Brendan Ryan. Mr Ryan in consultation with the mine manager, under-manager, deputy and an Eimco driver developed the procedure from installation of the fibercrib supports. In cross-examination, Mr Hobson conceded that in compiling his affidavit he had not spoken to Mr Ryan.

12 On 11 October 1996, a test of the hand stacking and stacking using the Eimco was undertaken by several Dartbrook employees and Mr Ryan. It was said that no hazards were identified and the procedures were considered satisfactory. The machine stacking approach was not continued because the design of the pallets was not compatible with the tynes of the Eimco. This was rectified by Dartbrook requesting the supplier to modify the pallets to accommodate the tynes of the Eimco used at the mine. In the meantime, hand stacking took place until the modified pallets arrived. The method of creating a stable base for the fibercrib supports was the same whether the hand stacking or machine stacking procedure was adopted. When the accident occurred in January 1997, this was the first occasion that the new pallets had been used in conjunction with the Eimco.

13 Mr Hobson referred to a number of documents, manuals, handbooks and the like to demonstrate that before and after the accident the defendant had a real commitment to occupational health and safety in its mining operations. There was a one day induction course which had been attended by Mr Rich. The defendant's safety health and environment community policy, following the accident, applied to all staff and contractors on the site. The policy was supported by safety management systems which were reviewed to ensure Dartbrook's commitment to continual improvement was achieved. The safety management procedures in place following the accident included procedures for reviewing and auditing the overall system. Mr Hobson also referred to the risk assessment process and steps taken to ensure effective communication of risks to employees. The communications procedures included tool box talks and communications meetings. Following industry changes in 1999, training became more competency based ensuring that miners were competent in the skills required to perform their work. The training schemes were a comprehensive process involving identification, analysis, development, reassessment and record keeping. Dartbrook now have 50 workplace trainers and 74 workplace assessors and as part of risk assessment, there was a re-assessment period for each competency. Contractors working underground also were required to complete the general underground induction.

14 Reference was also made to occupational health and safety and environment committees and their operations, the use of external auditors and the manner in which contractors were currently selected and their requirement to adhere to the defendant's policies. In addition, Mr Hobson set out the details of the qualifications possessed by Mr Ling, Mr Ham, Mr Rich and Mr Ryan.

15 On behalf of the defendant, Mr Hobson expressed the deep regret of the company that the incident had occurred and emphasised the defendant's commitment to occupational health and safety of all its workers, including contractors and visitors to the mining site. The defendant's commitment to workplace safety and its efforts to ensure an accident free operation was demonstrated by the fact that since 1996, the defendant had no occupational health and safety convictions.

16 For the prosecutor it was submitted that there were a number of factors that were indicative of the objective seriousness of the offence: (a) the defendant, pursuant to its right under the contract, gave specific directions to Mr Ham, Mr Rich and Mr Ling to undertake machine stacking of the 60 packs; (b) the defendant had direct control of the workplace; (c) the defendant did not advise Tecrete about the re-commencement of machine stacking and/or the use of Tecrete's staff; (d) the defendant did not take adequate steps to ensure the system of work was in fact safe; (e) the defendant did not ensure that the work crew was adequately trained in the work procedure it had developed; (f) the work crew was not being adequately supervised in the conduct of the subject task; (g) the defendant took no steps to ensure that Mr Ham and Mr Rich were positioned in areas where the collapse of the stack under construction presented no risk to their health or safety; (h) the machine stacking procedure involved the construction of cribs that were similar, in essence, to constructing a tower out of blocks - until the 60 packs were secured there was a significant and foreseeable risk that the tower could collapse either as a consequence of improper stacking, or contact between the fork lift attachment and the 60 packs; (i) the work was being performed with modified "60 packs" that had not been the subject of any testing prior to the task being assigned to the work crew and/or prior to the work commencing underground on 20 January 1997; (j) the work was being performed underground and the physical conditions of the environment added to the risks involved in the task of machine stacking; (k) both Mr Ham and Mr Rich were at risk; (l) having regard to the nature of the fibercrib blocks, the risk of injury was significant; and (m) Mr Rich sustained fatal injuries.

17 It was submitted that having regard to the nature of the work being performed there was a readily foreseeable risk of serious injury. Further, the defendant failed to adhere to the most basic principles of good safe working practice. For example, the provision of basic training and supervision with respect to the machine stacking of "60 packs" should have greatly reduced the risk of an incident of this type occurring.

18 It followed that the offence constituted a serious breach of the underlying purposes of the Act as the defendant failed to take appropriate measures to protect Mr Ham and Mr Rich against an obvious or foreseeable risk of injury. The gravity of the breach was illustrated further by the fact that Mr Rich died as a result of injuries sustained in the incident.

19 It was submitted that both specific and general deterrence were matters which should be taken into account in determining the appropriate penalty to be imposed in the present case. It was accepted that the underground mining industry was notoriously dangerous and the defendant continued to undertake underground mining work and this in itself was relevant to the issue of deterrence.

20 The penalty to be imposed should therefore reflect the need to direct not only the attention of the defendant to the need for a vigilant, pro-active approach to occupational health and safety but also to highlight that message to others operating in the industry. It was however accepted by the prosecutor that the defendant was not otherwise adversely known and was entitled to have its good industrial record taken into account in assessing the extent to which specific deterrence was to be reflected in the penalty to be imposed.

21 In relation to subjective factors, having regard to the fact that the prosecutor amended the charges, the defendant should be treated as having entered its plea of guilty at an early stage and therefore was entitled to have the full benefit of an early plea reflected in the penalty imposed. In addition, a plea of guilty could attract a greater degree of leniency where the Court was satisfied that the plea of guilty reflected contrition on the part of the defendant. It was also accepted that the defendant was entitled to a discount with respect to its co-operation with the WorkCover Authority in the investigation of the incident.

22 For the prosecutor, it was pointed out that the defendant's offence under s 16(1) arose out of the same facts and circumstances which led to the prosecution of Tecrete Industries Pty Ltd. under s 15(1) of the Act. While the principle of parity in sentencing applied in respect of co-offenders, or the class of offenders convicted across the range of a single offence, that is, offenders who are involved in the commission of the same offence, this principle did not have a direct application in circumstances of the present case where Tecrete was charged with a different offence. Nevertheless, the Full Court in Warman International Ltd v WorkCover Authority (NSW) (1998) 80 IR 326, in relation to sentencing, as between a labour hire company and its client for respective breaches of s 15 and s 16 of the Act, recognised a need for consistency in the sentencing of offenders for what could be best described as "related" offences: While the offences with which we are dealing under the O H & S Act do not involve the notion of co-offenders, the fact is that the same circumstances have given rise to prosecutions for offences under ss 15 and 16 of the O H & S Act of the direct employer, Drake Personnel Ltd (t/as Drake Industrial) which supplied the labour involved, and the defendant here who utilised that labour in relevant circumstances. While those defendants have been found guilty of different offences, nevertheless the factual circumstances giving rise to the charges justify an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Low v The Queen (1984) 154 CLR 606 at 610-11 (at 341).

23 Both the principle of parity and the principle of consistency in sentencing referred to in Warman only operated to the extent of comparing like with like and it followed that differences in sentencing outcomes that reflect differences in the circumstances between "co-offenders" would not offend against those principles. In this case, having regard to the nature and quality of the offence, the Court should impose a significant monetary penalty upon the defendant.

24 After submissions were received in this matter, the judgment on penalty in Tecrete was handed down by the Court (Morrison v Tecrete Industries Pty Ltd [2003] NSWIRComm 371). In that case, a total discount of 30 per cent was allowed on a primary penalty of $175,000 resulting in a final penalty being imposed of $122,500.

25 In the course of submissions in this matter, I raised with counsel for the prosecutor the issue of consistency in sentencing in light of the submissions referred to earlier in this judgment. Counsel firstly noted that Tecrete was prosecuted under s 15(1) of the Act and Dartbrook had been prosecuted under s 16(1) of the Act although it was said this did not lessen the obligation that was imposed by the legislation upon the defendant. The matters of significance identified by the prosecutor were: that Dartbrook was in direct control of the workplace, Dartbrook had designed the particular work system, Dartbrook had undertaken tests in late 1996 which utilised the system which identified problems and that in January 1997, Mr Ryan, an employee of Dartbrook charged with overseeing this particular work reintroduced the machine stacking, and did so without giving notice to Tecrete. While Tecrete could not be left "out of the picture", the primary acts that led to the accident were those which were associated with Dartbrook.

26 For the defendant, senior counsel submitted that there were very significant systems for safety in operation at Dartbrook Mine and that the present incident involved an act of inadvertence in a relatively minor brush with the base of the stack which led, unfortunately, to fatal injuries being received by Mr Rich. It was not contested, however, that this was a serious breach of the act but there were a number of considerations which would lead the Court to assess this offence at the lower level of penalties.

27 Counsel for the defendant also accepted as fair and balanced the bulk of the submissions of the prosecutor but pointed out that there was one issue which had not been accurately portrayed in those submissions. It was an error to regard the system of palletised stacking as being stopped because of some defect in the process involving its utilization. The process had been tested, observed and had not been found wanting except for the fact that the pallets did not properly fit onto the tynes of the front end loader mechanism used at the mine. A request was then made to the supplier to modify the palettes and that occurred. When the defendant returned to the system of palletised construction there was no further defect to be considered or analysed, the process remained appropriate and safe.

28 It was also suggested on behalf of the defendant that the prosecution's submissions that training and supervision would have reduced or eliminated the risk, put it too highly. At best, training and supervision may have had that effect but it also may not have had the effect of reducing or eliminating the risk. The circumstances of the accident, as found by the investigating team, showed that there were a combination of facts at work.

29 Senior counsel for the defendant pointed out that the supplier of the fibercrib stacks described them as suitable for machine stacking by fork lift but had not supplied an operating procedure for such an operation. The defendant had developed that procedure and it was supplied to Mr Rich and Mr Ham and that occurred in January 1997. Notwithstanding that machine stacking had been introduced following the October 1996 difficulties and that Mr Ham and Mr Rich were taught by Mr Moylan to build the fibre roof support by hand, at that time there were procedures developed by Mr Ryan and given to them.

30 It was also submitted for the defendant that it did not appear from the Agreed Statement of Facts that there was anything wrong in the way in which the men went about the task of constructing the stack. Two stacks had been put in place and difficulties were encountered with the third stack: they perceived it to be less than stable and very appropriately kept the position under review and tried to devise a way of dealing with it and was still in that process when the accident occurred. They were still attempting to solve this problem when, inadvertently, the front of the fork lift tyne was dropped and clipped the wooden sleeper thus destabilising the stack. The defendant did have training and did have systems and this was not a case of some embedded, chronic deficiency.

31 Given the overall systems referred to by Mr Hobson, this was a defendant who did not need a salient reminder by way of specific deterrence. Overall, the case would be regarded as at the lower end of the scale of penalties.

DELIBERATION 32 Senior counsel for the defendant frankly conceded that the breach in this case was serious. The terms of the Agreed Statement of Facts and the fatal injury to Mr Rich confirm such a finding. The defendant has pleaded guilty to a charge that it failed to ensure that the operating procedure for the machine stacking of palletised fibercrib blocks, that Brendan Ryan directed Raydon Rich, Michael Ham and Dean Ling to use, was safe for their use and without risk to their health and/or safety. The defendant has stopped using this palletised system and uses another method of sealing the mine. The aggravating aspect of this offence is the decision to proceed with the palletised system using the front end loader when the employees directly involved had expressed their disquiet about that method and their lack of familiarity with it. They were quite capable of performing the task by hand but their disquiet was not sufficient to dissuade Mr Ryan from directing that the work be done by using the front end loader. Further, this system of operation although tested some months earlier to the satisfaction of the defendant does not appear to have been discussed with Tecrete in terms of their employees being involved in utilising that process.

33 In relation to the objective seriousness of this offence, the expressed disquiet of these employees should have made Mr Ryan alert to the need for them to receive additional training and assistance by way of direct supervision, especially while they became used to this new system of stacking. It is also to be noted that during the course of the stacking and before the tyne hit the wooden sleeper at the base of the stack, the stack already appeared to be unstable. That is why Mr Ling had withdrawn the tynes and reversed the fork lift. 34 It is also significant that Mr Moylan stated that at no time in January 1997 did Mr Ryan or any other representative of Dartbrook inform him that Dartbrook proposed to re-commence machine stacking of the fibercrib chocks. He was not told that any of the Tecrete employees would be used in this task.

35 The mining industry is an inherently dangerous industry and there are many employees involved in the industry. The penalty imposed in this case should reflect the need for employers to be alert to the risks which can arise in their workplace: in this particular case both general and specific deterrence play a significant role in setting an appropriate penalty.

36 Having regard to these matters I would set a primary penalty of $215,000.

37 In relation to subjective features, I accept that the defendant's unblemished record since the mine commenced operation in 1996 is to be regarded as a good record. The prosecutor accepts that it co-operated with the investigations conducted by the WorkCover Authority and the defendant's evidence demonstrates its concern with establishing and maintaining safe systems of work. There is also evidence of the contrition of the defendant. Having considered the course of the matter following the interlocutory judgment, I accept that the defendant has entered an early plea to an amended charge. It is entitled to a full measure of recognition on this account and a discount therefore of 25 per cent will be allowed. In relation to the other subjective elements I allow a further 10 per cent discount resulting in a total discount of 35 per cent.

ORDERS 1. The defendant is convicted of the offence under s 16(1) of the Occupational Health and Safety Act 1983 to which it pleaded guilty in IRC Matter 2262 of 2001.

2. The defendant is fined the sum of $139,750 with moiety therefore to the prosecutor.

3. The defendant is to pay the costs of the prosecutor as agreed or assessed in accordance with the rules of the Court.

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.