Rodney Morrison v Powercoal Pty Ltd - [2003] NSWIRComm 416 - NSWIRComm 1992 case summary — Zoe

NSWNSWIRComm

Rodney Morrison v Powercoal Pty Ltd

[2003] NSWIRComm 416

Industrial Relations Commission (NSW)|1992-06-30|Before: Wright J, Walton J, Boland J, Fisher CJ, Cullen JJ, Mr P, Schmidt J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Wright J, Walton J, Boland J, Fisher CJ, Cullen JJ

Source

Original judgment source is linked above.

Judgment (63 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 APPELLANT Rodney Morrison PARTIES : RESPONDENT Powercoal Pty Ltd FILE NUMBER: IRC 6941 of 2002 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS : Appeal - Occupational Health and Safety - Mining industry - Fatality - Relevant principles - Sentence manifestly inadequate - Appeal upheld Criminal Appeal Act 1912 5D LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 s 15 (1) Alcatel Australia Ltd v Workcover Authority of New South Wales (1996) 70 IR 99 Everett v The Queen (1994) 181 CLR 295, 299 Griffiths v R (1977) 137 CLR 293 Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9) Haynes v C I & D Manufacturing Pty Limited (1995) 60 IR 149 House v The King (1936) 55 CLR 499 Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4) Inspector Belley v Rail Infrastructure Corporation [2001] NSWIRComm 323 Inspector Howard v Multiplex Constructions (NSW) Pty Limited [2002] NSWIRComm 229 Inspector May v McDonalds Australia Limited [2002] NSWIRComm 179 Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 Inspector Robert Littley v Rick Damelian Pty Ltd [2003] NSWIRComm 121 CASES CITED : Inspector Victor Larobina v Fan Electrics (NSW) Pty Ltd [2002] NSWIRComm 230 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298 Tyler v Sydney Electricity (1993) 47 IR 1 Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (1999) 90 IR 119 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 Workcover Authority of New South Wales v Albury City Council (1999) 90 IR 397 Workcover Authority of New South Wales v Katoomba Scenic Railway Pty Ltd [1998] NSWIRComm 308 Workcover Authority of New South Wales v Robert Shone Construction Pty Ltd [2002] NSWIRComm 222 WorkCover Authority of New South Wales v Waugh & Anor (1995) 59 IR 89 Workcover Authority of NSW (Inspector Ankucic) v The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service) [2003] NSWIRComm 170 HEARING DATES: 07/30/2003 DATE OF JUDGMENT: 11/28/2003

[11]

4 Schmidt J referred to an agreed statement of facts that was in the following terms: 1. At all material times Christopher Elliott and Colin Bradley were employees of Powercoal Pty Limited ("Powercoal"). 2. At all material times Christopher Allen was an employee of Waratah Engineering Pty Limited ("Waratah Engineering") 3. At all material times Powercoal was a body corporate. 4. At all material times Rodney Morrison was authorised to commence prosecutions under the Occupational Health and Safety Act and this prosecution was commenced pursuant to that authorisation. 5. At all material times Powercoal operated an underground coal mine located near Dora Creek, 35 kilometres south west of Newcastle on the western side of Lake Macquarie which coal mine was and is known as Cooranbong Colliery ("Cooranbong Colliery"). 6. On 1 July 1999 at or about 11.45pm Christopher Elliott was one of four persons working at Cooranbong Colliery approximately 125 metres below the surface and about 7.5 kilometres from the entrance to the mine at a section of the mine known as Stowage B Panel. 7. Prior to 11.45pm on 1 July 1999 Christopher Elliott was assisting in the installation of a conveyor boom onto a Joy 12 CM 12 (No CM04) Continuous Mining Machine ("the Continuous Miner"). 8. Prior to 11.45pm on 1 July 1999 Colin Bradley and Doug Jones who were both employees of Powercoal were also assisting in the installation of the conveyer boom to the Continuous Miner. 9. At all material times Christopher Allen was the service technician employed by Waratah Engineering to work upon the maintenance and assist in the installation of the conveyor boom. 10. The Continuous Miner was owned by Waratah Hire Pty Ltd ("Waratah Hire") and had been hired by Powercoal pursuant to a hire contract for the purposes of producing coal. Waratah Hire engaged Waratah Engineering to service the Continuous Miner. 11. At all material times Waratah Engineering employed service technicians who were required to service mining and other equipment (such as the Continuous Miner) for Waratah Hire and others. Waratah Engineering owned and operated a workshop for that purpose and also sent its technicians to mine sites to work on mining equipment. 12. On 30 June 1999 the Continuous Miner sustained damage to the conveyer boom main hinge points. 13. A Mr Gluszek from Waratah Hire and Christopher Allen went to Cooranbong Colliery on 30 June 1999 and inspected the Continuous Miner. It was observed that the pivot tubes had broken out, that there were some fractured brushes and some other damage to the Continuous Miner. 14. Christopher Allen removed the conveyer boom from the Continuous Miner and it was taken to Waratah Engineering's workshop for repairs. 15. On 1 July 1999 Christopher Allen was asked to go to Cooranbong Colliery to assist in the installation of the conveyer boom on the Continuous Miner. 16. The installation of the conveyer boom onto the Continuous Miner had commenced during the afternoon shift on 1 July 1999 but had not been completed. The night shift crew comprising of Christopher Elliott, Colin Bradley, Doug Jones and Christopher Allen were all required to complete the installation and specifically were required to connect the boom lift cylinders to the boom and reconnect the conveyer chain. 17. Whilst performing the installation the power to the Continuous Miner was turned on and the stabiliser jack to the Continuous Miner was lowered. 18. Whilst the Continuous Miner's power was off, but not isolated at all and whilst performing the installation Christopher Elliott climbed into a space between the underside of the conveyor boom and the stabiliser jack which was in the lowered position. 19. During the installation the left hand boom lift cylinder ram was found by Christopher Elliott to be too tight to extend by hand to align with the top clevis. It was therefore decided to drive the ram out by using the Continuous Miners hydraulics by turning the Continuous Miner's power on. 20. Prior to powering up the Continuous Miner Colin Bradley positioned himself under the rear side of the Continuous Miner between the rear bumper and the floor adjacent to the left hand side of the stabiliser jack foot and held the said foot in position with his own foot. 21. Prior to powering up the Continuous Miner Christopher Elliott remained in the space between the underside of the conveyor boom and the stabilizer jack which was in the lowered position. 22. Christopher Elliott then requested Douglas Jones to start the Continuous Miner's power. 23. Douglas Jones started the Continuous Miner's power with a remote radio controller the effect of which was to cause the stabilizer jack to be raised although not fully from its lowered position. This caused both of Christopher Elliott's legs to be trapped between the stabilizer jack and the underside of the Continuous Miner. 24. The Continuous Miner was immediately shut down using the remote control. Christopher Elliot's legs remained trapped. The Continuous Miner was then restarted so as to release Christopher Elliott's legs by use of the remote control whilst holding the stabiliser jack toggle in the down position. This did not override the automatic retraction of the stabilizer jack which then retracted to the full up position. The effect of this was to further crush Christopher Elliott's legs. 25. Colin Bradley was able to remove his right leg from its position between the stabilizer jack and the main frame of the Continuous Miner before the stabilizer jack first started to retract. 26. At the time that Christopher Elliott's legs became trapped they were crushed and the metal pierced his left thigh cutting through the femoral artery and vein ultimately causing his death. 27. At all material times the stabiliser jack of the Continuous Miner automatically retracted upon the hydraulic pump on the Continuous Miner being started. It was not necessary for the operator to activate the stabilizer jack for it to retract. Further, the retraction of the stabilizer jack could not be defeated by the operator using the remote radio transmitter. 28. Powercoal had Isolation Procedures (GWP005) and Continuous Miner Operating Procedures (SWP002). These procedures were not applied on the night of 1 July 1999. These procedures did not specifically deal with the work that was being performed on 1 July 1999. 29. Powercoal did not provide any information, instruction or training to Colin Bradley or Christopher Elliott in the installation of the conveyor boom and in particular: (a) that the stabilizer jack would automatically retract when the power to the Continuous Miner was activated; (b) that no instructions were given to Colin Bradley and Christopher Elliott about the method to be adopted to attach the boom lift jacks to the boom; (c) that Colin Bradley and Christopher Elliott were not provided with any information, instruction or training on the need to ensure that the machine was isolated when reinstalling the conveyor boom to the Continuous Miner; (d) at no time during the replacement of the boom were any of the persons present allocated to act as supervisor. 30. In the report of Inspector Conlon, District Inspector of Coal Mines, he said: "an amended safe working procedure for removal and replacement of a conveyor boom on 12CM12 continuous miners has been formulated. Retraining of the workforce in the new procedures has been undertaken." 31. Powercoal has no prior convictions under the Occupational Health and Safety Act 1983.

[12]

5 Schmidt J concluded that the breach in question was a serious one. At pars [31] and [32] of her judgment her Honour stated: 31 The evidence showed that there was a deficiency in the training provided in the work here in question. The employees were seemingly not aware of the automatic retraction of the jack and its serious consequences, were the machine to be turned on, while they were performing the maintenance work they were engaged on. Nor did they appreciate that this automatic retraction could not be overridden by use of the remote control. 32 The evidence did not leave open to doubt that the applicable isolation procedures, if they had been implemented, would have precluded the accident occurring. Whether the direction given by Mr Elliott to start the machine resulted from a misunderstanding of the document in question, which applied to this work, as Mr Myors conceded was possible, or for some other reason, cannot be determined on the evidence. That the work being undertaken had been performed on many occasions beforehand, without incident cannot be overlooked. As I have found on the evidence, that record cannot have resulted from mere good fortune. While account must also be taken of the fact that neither of the two fitters who had been trained and delegated the function of performing and supervising this type of work, had in fact been designated the supervisor of the particular job being performed, it is also relevant that they had that capacity, and it was employees with such training who were amongst those performing the work. It was one of those fitters who gave the direction for the machine to be switched on, apparently without demur by the defendant's other employees or by Mr Allen, who was also present. A portable power pack was available and its use would have precluded this tragedy occurring. Once again, the evidence showed that a simple and available measure, if taken, would have precluded a serious and readily foreseeable risk to safety arising.

[13]

6 In determining the quantum of sentence, her Honour reached the following conclusions at pars [34] to [37]: 34 The parties were at considerable odds as to the penalty which would properly flow from the evidence as to the nature of this offence. While I am well satisfied that a substantial penalty must be imposed, I am unable to accept the prosecutor's submission that the circumstances must lead to the imposition of a high range penalty. In my view, a penalty of the kind proposed would be inconsistent with both the evidence in this case and the approach which the Court has taken in other cases involving a plea to a first, albeit serious, offence where the gravity of the consequences of the offence has been of the worst kind, namely a death has occurred. While it is not easy in prosecutions brought under the Act for comparisons to be readily drawn between the circumstances of different offences, the approach adopted in cases such as Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; WorkCover Authority of New South Wales (Inspector Dunlop) v Robert Shone Constructions Pty Ltd [2002] NSWIRComm 222; WorkCover Authority of New South Wales (Inspector Sharpin) v Christie Civil Contracting Pty Ltd [2002] NSWIRComm 209; WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163; WorkCover Authority of New South Wales (Inspector Buggy) v P&O Ports Ltd [2000] NSWIRComm 249; WorkCover Authority of New South Wales (Inspector Sharpin) v Bovis McLachlan Pty Ltd [2002] NSWIRComm 210 and WorkCover Authority of New South Wales (Inspector Robins) v Katoomba Scenic Railway [1998] NSWIRComm 308 (30 June 1998), are pertinent and support the conclusion which I have reached about the appropriate range of the penalty to be imposed in this case. 35 While the sentencing process commences with a consideration of the nature and quality of the offence revealed on the evidence, it is also well settled that the task of the Court in fixing penalty, is to assess the relative seriousness of the offender's particular offence, in relation to a worst case for which the maximum penalty is provided. I am satisfied, having regard to the nature and quality of the offence, the gravity of the potential risk to safety flowing from this offence and the evidence which threw light on the defendant's culpability, that such an approach in this case could not properly lead to the imposition of a high range penalty. In arriving at the appropriate penalty, account must also be taken of the defendant's record, as well as the other matters properly raised in mitigation. 36 As to record, I am satisfied on the evidence that this defendant's record did not result as a matter of luck, but rather from the real attention it had paid to safety at this workplace prior to this accident, in a proactive, not merely a reactive way. The existence of a safety system, which would have prevented the accident, if adhered to, must also be taken into account. Given the nature of the detriment to safety here in question, I do however accept that elements of both general and specific deterrence must feature in the penalty imposed and have taken this into account in fixing penalty. 37 I turn then to the question of any discount. I am satisfied that this was an early plea, entered as soon as the prosecutor had amended the application for the orders it sought in these proceedings and sought the dismissal of the two other prosecutions under the Act which had been brought against the defendant, arising out of the same circumstances. I am satisfied that the discount appropriate to be applied in these circumstances, having regard to utilitarian savings and contrition, is a total of 35%. In this latter regard, it is appropriate that I take into account the very considerable action taken by the defendant in response to the risk to safety, which the accident had exposed. In an environment where there had already been serious attention paid to safety matters generally, the detailed step by step instructions and check lists introduced by the defendant for complex maintenance work, together with a new instruction and approval process and enhanced safety audit procedures were commendable and properly now to be taken into account in fixing penalty.

[57]

34 In the present case, in considering whether Schmidt J failed to give any, or any appropriate, weight to the objective nature and seriousness of the offence and whether the sentence was manifestly inadequate, there are a number of critical considerations in our opinion: 1. Powercoal had extensive safety procedures in place including in relation to maintenance work to be carried out on continuous miners. There was a general direction in place and one known and understood by Messrs Elliott and Bradley that, prior to any maintenance work being carried out on a continuous miner, the machine was required to be isolated from its power source. 2. Messrs Elliot and Bradley were experienced mechanical fitters appointed under the relevant Regulations to work underground unsupervised and to supervise and effect proper isolation, examination, testing and maintenance of all mechanical apparatus at the mine. However, it was conceded by the defendant that the particular written instructions applying to the isolation of machinery could have been misunderstood by Messrs Bradley and Elliott as permitting the operation of the continuous miner, to raise the hydraulic cylinders, rather than requiring the use of an independent power source to achieve that effect. 3. Powercoal was aware, prior to the accident on 1 July 1999, that the stabiliser jack would automatically retract when the power to the continuous miner was activated and that this presented a risk to health and safety. 4. It was agreed between the prosecutor and the defendant at first instance that: Powercoal did not provide any information, instruction or training to Colin Bradley or Christopher Elliott in the installation of the conveyor boom and in particular: (a) that the stabiliser jack would automatically retract when the power to the Continuous Miner was activated; (b) that no instructions were given to Colin Bradley and Christopher Elliott about the method to be adopted to attach the boom lift jacks to the boom; (c) that Colin Bradley and Christopher Elliott were not provided with any information, instruction or training on the need to ensure that the machine was isolated when reinstalling the conveyor boom to the Continuous Miner; (d) at no time during the replacement of the boom were any of the persons present allocated to act as supervisor.