Rodney Morrison v Wambo Coal Pty Ltd

PROSECUTOR Mr J Kernick of counsel Solicitor: Mr J Morton Crown Solicitors Office LEGAL REPRESENTATIVES: DEFENDANT Mr R Buchanan, QC with Mr M Shume of counsel Solicitor: Mr G McCann Sparke Helmore

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 2 July 2004

RODNEY MORRISON v WAMBO COAL PTY LTD (FORMERLY KNOWN AS WAMBO MINING CORPORATION PTY LTD) (A.C.N. 000 668 057)

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 189

1 Wambo Coal Pty Ltd ("the defendant") has pleaded guilty to a breach of s 16(1) of the Occupational Health and Safety Act 1983. This judgment concerns the penalty to be imposed for that breach.

2 The breach arose out of an incident that occurred on 6 March 2001 at the Wambo Underground Mine ("the Mine") situated at Jerrys Plains Road, Warkworth in the State, a mine owned and operated by the defendant. On the evening shift on that date several personnel were carrying out mining work in an area known as the Longwall 13 Installation Roadway. The personnel were Robert John Davies, Gregory Durie, Michael Ball, Paul Prior, Steven Parrey, Alan Walton, Colin Blanch, Peter Lennard and John McDonald. They had been employed by Wollemi Services Pty Ltd. This company had an arrangement with the defendant whereby it provided the services of the aforementioned employees to undertake mining operations.

3 At about 8.15 pm, whilst Mr Davies was standing on the driver's or right hand side roof bolting platform of a continuous mining machine known as CM12, a large piece of coal fell from the right hand side wall of the underground roadway and crushed Mr Davies against the side of the continuous miner. The piece of coal that fell was approximately 5.5 metres long, 2 metres high and 0.5 metres thick with a mass of approximately 8 tonnes. Mr Davies subsequently died in transit to hospital from the injuries he received.

4 The defendant was charged with an offence under s 16(1) of the Occupational Health and Safety Act 1983 by Rodney Morrison, Assistant Director of Performance Improvement of the Department of Mineral Resources ("the prosecutor"). Section 16(1) provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

5 In relation to what occurred on 6 March 2001 it was alleged in the amended application for an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 that the defendant, being an employer, failed to: [E]nsure that Mr Robert John Davies, Gregory Durie, Michael Ball, Paul Prior, Steven Parrey, Alan Walton, Colin Blanch, Peter Lennard and John McDonald being persons not employed by Wambo Coal Pty Ltd, were not exposed to risks to their Health or Safety contrary to section 16(1) of the Occupational Health and Safety Act 1983 .

6 The defendant's failure to ensure safety was particularised at particular (l) of the amended application: (l) The defendant failed to ensure that persons not in its employment were not exposed to risks to their health or safety arising from the conduct of the employers undertaking while they were at the employers place of work in that it failed to maintain a system of work which ensured that rib bolts were installed systematically in conjunction with roof bolting so as to minimise the area of unsupported rib at all times, thereby reducing, so far as practicable the risk posed by rib spall. The defendant pleaded guilty to the amended charge.

7 Agreement was reached between the prosecutor and the defendant on a statement of facts. It is unnecessary to recite the whole of the agreed statement, which needs to be considered together with the other evidence in the proceedings. For the prosecutor this other evidence consisted of: (a) An expert witness report of David Carey, Senior Inspector of Coal Mines, Department of Mineral Resources, dated 11 May 2004 relating to the accident on 6 March 2001. Mr Carey's report was in response to the question "What steps did prudent mining practice require to deal with any dangers presented by the conditions in question?" (b) Plan and photographs of the accident scene. (c) Other plans showing the locality of the accident site, floor levels in the area of the accident, Longwall 13 Installation area driveage sequences and distances. (d) A quotation for the rental and supply of rib bolters and equipment to fit a CM12 continuous miner dated 23 July 1999.

8 The evidence for the defendant was an affidavit of Anthony Gordon Sutherland, Underground and Technical Services Manager, Wambo Coal Pty Limited and an affidavit of Dr Jim Galvin, Engineering Consultant. Mr Sutherland's affidavit addressed the following matters:

· His personal background and experience which included 19 years in the mining industry including a number of engineering and management positions. He holds a mining engineering degree from the University of New South Wales. · The nature of the mining operations at the Mine and its history. · Occupational health and safety systems, training, audits, reviews and safety alerts operating prior to the accident at the Mine. · The system of mining at the Mine as at January 2001 including the system for supporting ribs and the assessment procedure. · A description of the rib support installed in Installation Roadway 13, the site of the accident. · The experience of the persons working in the Mine at the time of the accident. · A description of Support Rules applicable in the Mine at the time of the accident including the legislative background to the Rules. · Rib bolting after the accident. · The risk to Mr Davies. · The occupational health and safety committee at the Mine. · Current status of the Wollemi Mine. · The defendant's cooperation with the investigation unit. · Employee assistance and assistance to Mr Davies' family.

9 Mr Sutherland was required for cross-examination, mainly in relation to the quotation for the rental and supply of rib bolters and equipment to fit a CM12 continuous miner dated 23 July 1999.

10 Dr Galvin is an engineering consultant and has an extensive practical and academic background in mining engineering, holding a PhD in Mining Engineering (Rock Mechanics) from the University of Witwatersrand. He may properly be regarded as an expert in his field. Dr Galvin was asked by lawyers for the defendant to prepare a report (that was annexed to his affidavit) that addressed the following matters: 1 Types of underground coal mining methods and associated inherent risks.

2 Techniques, technologies and practices for supporting the roof and sides of roadways in coal seams.

3 Status of roof and rib support systems at Wambo Underground Mine as at 6/3/01. Dr Galvin was not required for cross-examination on his affidavit evidence.

11 The evidence in the proceedings revealed the following relevant facts: (a) The Mine is situated on and mines what is known as the "Whybrow seam". The Whybrow seam contains claystone bands of various thicknesses. The then Wollemi mine (which became part of the Wambo mine) commenced operations in July 1997 extracting the Whybrow seam coal. (b) The Whybrow seam generally and the mine particularly, have a history of injury caused by "rib failure". That is, material constituting the wall, or rib, of the mineshaft may come away from the rib and fall onto the floor of the Mine. The material separating from the rib is referred to as "rib spall". (c) The method of mining used at the mine was the longwall method. Longwall mining is a system of mining coal in which the seam is extracted on a broad front or wide face. A typical longwall block could be 200 metres wide by 2000 metres long. The longwall shearer operates across the 200-metre face shearing approximately one metre at a time. The roof is maintained by a series of hydraulically operated shields/chocks which move forward as the longwall is extracted. The cavity is allowed to collapse as the longwall advances. In his affidavit Dr Galvin said of longwall mining: Longwall mining constitutes the safest form of underground coal mining. It minimises the amount of first workings driveage, thereby significantly reducing the time that mineworkers are exposed to roof and ribs at the face. (d) As at 6 March 2001 the Mine had 5 continuous mining machines. These included two single pass, remotely controlled machines fitted with hydraulic roof and rib bolters. These machines were CM9 and CM11. A single pass machine has a wide cutter head and enables the full width of the roadway to be mined in one operation. As these machines cut into the coalface and moved forward, the roof and walls of the mine are drilled and bolted using steel bolts (or, in some circumstances, fibreglass dowels for rib bolts) up to 2.4 metres long inserted at pre-determined intervals along the roof and walls. The effect of roof bolting is to secure the roof from caving in by clamping layers of sediment together to build a laminated beam. Similarly, rib bolting is designed to prevent parts of the wall breaking away. (e) The remaining three machines were dual pass machines, that is, machines with narrower cutting heads. These machines were CM7, CM8 and CM12 and they were not fitted with hydraulic rib bolters. The machine against which Mr Davies was crushed was CM12. (f) The crew on the evening shift (6.30pm - 2.00am) on Monday 5 March 2001 refused to work in the Longwall 13 Installation Roadway due to the presence of overhanging ribs on the right hand or block side. (g) The night shift (12.45am - 8.15am) for Tuesday 6 March 2001 bolted the ribs in the Longwall 13 Installation Roadway as far as the rear of the continuous miner (approximately 13 metres from the face) using an Eimco (general purpose articulated vehicle) mounted hydraulic rib bolter. CM12 remained at the face while rib bolting was undertaken. The night shift also cut one metre from the face. (h) The day shift (7.00am - 2.30pm) for Tuesday 6 March 2001 cut a further 8.5 metres in the Installation Roadway and installed no rib bolts. (i) The afternoon shift (12.15pm - 7.45pm) for Tuesday 6 March 2001 was a three-man maintenance crew that carried out no development in the Installation Road nor did it undertake any rib bolting. (j) On Tuesday 6 March 2001 the evening shift commenced at 6.30pm. A crew consisting of the nine men that are the subject of the charge was assigned to carry out production in the Longwall 13 Installation Roadway. The men, including Mr Davies, were very experienced miners. The panel deputy Mr Durie had 20 years' experience. Continuous miner operator Michael Ball attended the face of the Installation Road and cut a car of coal using CM12. He then "scaled" the right hand rib down with a rib bolt and the side of the head of the continuous miner. Scaling means to bar down or scrape off loose ribs or roof. Michael Ball and Robert Davies then installed four roof bolts at the face, and inspected and sounded the unsupported rib. (k) Prior to work commencing on evening shift the miner driver, Michael Ball and the Deputy Mr Durie, both inspected the ribs closely. They paid particular attention to them as Mr Ball had been the person who had not wished to operate the continuous miner the previous evening having regard to the state of the ribs and Mr Durie had endorsed his assessment on that occasion. On 6 March 2001 they were each satisfied that the ribs appeared safe. (l) At about 8.00pm Robert Davies took over the operation of the continuous miner and cut two further cars of coal from the face. The distance from the last rib bolts to the face was now approximately 23 metres. (m) Members of the evening shift crew had occasion from time to time to position themselves between CM12 and the unsupported rib. This was to carry out tasks that included roof bolting, extending ventilation tubes, and carrying out inspections and maintenance. (n) At approximately 8.15pm, whilst Robert Davies was standing on the right hand side roof bolting platform of CM12, a large piece of rib coal fell from the right hand side of the heading and crushed him against the side of the continuous miner, resulting in fatal injuries. (o) The coal that fell from the right hand rib had been exposed by the cut on day shift 6 March 2001 and had been standing unsupported for between approximately 7 and 13 hours at the time that it fell. (p) Utilising the CM12's hydraulic roof bolters, roof bolts were installed in the Installation Roadway as it was developed in accordance with the Mine Manager's minimum support requirements of the time. These provided that roof bolts were to be installed every 1.5 metres with a maximum of 6 metres of unsupported roof at the face. In practice the roof was bolted to approximately 3.4 metres from the face, coinciding with the position of the roof bolter on CM12. (q) At the time of the accident CM9, the machine fitted with hydraulic roof bolters, was situated approximately 145 metres from where the accident occurred. (r) Section 102 of the Coal Mines Regulation Act 1982 states that the Mine Manager shall make Support Rules that are not inconsistent with the Act, with respect to the support of roof and the sides of working places and roadways in the mine. These Rules are subject to the approval of a District Inspector of Mines. The Support Rules in place at the time of the accident required rib support/bolts to be installed where necessary at maximum spacings of 2.0 metres. (s) The Mine Manager's minimum support requirements at the time of the accident provided "All exposed ribs… to be supported … within 24 hours of excavation." The 24-hour rule came into effect after a Mines Inspector advised the Mine manager in July 1998 that "no rib up to the continuous miner shall remain for more than 24 hours in an unsupported state". This requirement was adopted at the Mine and applied at the time of the accident in March 2001. The 24-hour rule was part of a number of control measures proposed by the Department of Mineral Resources and developed over time following injuries to a colliery fitter in February 1995 from rib spall. The measures were designed to prevent rib spall being caused by a thick claystone band in the coal seam expanding when exposed to atmosphere and moisture, thereby creating tensile forces in the adjacent coal and causing it to split. (t) Support in relation to the right (or block) side consisted of 1.2 metre fibreglass dowels and wooden blocks at 1.2 metre maximum intervals. The bolts were installed in a 'W' pattern with one bolt installed 600mm above the bottom of the clay band and the next bolt installed 600mm below the roof. (u) In accordance with management directions, rib bolting was effected once in each 24 hour mining cycle using an Eimco mounted hydraulic rib bolter to install rib bolts up to the rear of the continuous miner (i.e. approximately 13 metres from the face). Accordingly, rib bolts were last installed prior to the accident in Longwall 13 Installation Road on the night shift of 6 March 2001 when the ribs were bolted up to the rear of CM12. (v) The level of supervision at the mine at the time of the accident was adequate and in compliance with that required under the Coal Mines Regulation Act 1982 and the Mine Inspection Plan. The defendant's regard for a proper and effective system to protect the health and safety of persons in the Mine was not in issue. (w) The underground Wollemi mine is currently on "care and maintenance". This means that the mine is ventilated and kept open for inspection as it may be used in the future to access one of the lower seams. (x) The defendant cooperated with the Department of Mineral Resources in its investigation of the accident. (y) The defendant provided assistance to employees and Mr Davies' family by way of counselling following the accident. The defendant deeply regrets Mr Davies' death and the impact on his family. (z) In relation to what occurred on 6 March 2001 Dr Galvin said in his report: In my experience, I have not encountered such a large slab of coal falling from the rib as one body in first workings driveage. Had the single pass remotely controlled continuous miner fitted with roof and rib bolters been employed at the time, I am unsure if the incident would have been avoided. This is because the rib bolters were on the outbye side of the operator's onboard platform. Therefore, a significant portion of the slab, including that immediately adjacent to Mr Davies, would still not have been supported. The potential may still have existed for a portion of this slab to fall and to result in the same consequences. (aa) In his affidavit Mr Sutherland opined: I still regard the fall of coal which struck Mr Davies as atypical. In my search of company records I did not find any prediction of a fall of this kind or suggestion that ribs required immediate bolting for reasons of safety. Otherwise the Support Rules would have required this. As I pointed out above, the Support Rules had been developed with the active involvement and under the direction of a number of Inspectors. It was their recommendations and directions that appear to have given rise to the 24 hour rule. (ab) In his conclusions, Senior Inspector Carey stated: 7.1 Rib spall (failure) had been identified as a hazard at the mine prior to the accident. The system of mining in place failed to adequately address the risk that hazard posed as it failed to manage the probability of exposure or the magnitude of the consequences of an exposure to the hazard. Allowing ribs to remain unsupported for up to 24 hours placed no limit on the possible advance between rib support installations. This approach along with then only bolting ribs to the back of the continuous miner meant that some tasks within the mining system must be conducted adjacent to unsupported ribs and at times between unsupported rib and continuous miner.

7.2 Alternative approaches to that in use with CM12 were readily available both within the mine and within the industry. CM9 used in the development of longwall 13 bleeder heading was fitted with hydraulic rib bolting machines. These allow the placement of rib bolts in parallel with the placement of roof support. These operations were being conducted 145 metres from the accident site, assumption 17. Using hydraulic rib bolters mounted on a narrow head machine such as CM12 is not an uncommon industry practice. At Cordeaux Colliery in 1996 I have personal experience of this system of mining. Utilising hand held bolting rigs to place rib bolts beside a continuous miner as roof support is installed was a common practice prior to the introduction of machine mounted hydraulic rigs. At Newvale Colliery during the late 1980's this system was in use in the Fassifern seam operations.

7.3 The introduction of any of these methods to place rib bolts would have greatly reduced the risk posed by rib spall at Wambo / Wollemi Mine at the time of the accident.

12 Before addressing the primary consideration in sentencing, that is the gravity of the offence viewed objectively, there are some matters of a more general nature that I consider deserve comment. Firstly, I gained the impression from some of the evidence in the proceedings that because coal mining is an inherently dangerous industry it had to be accepted that there was only so much that could be done towards ensure the health and safety on persons working in the industry. Beyond that, it seemed to be implied, it was not always reasonably practicable to adopt or implement measures to ensure safety. For example, in Dr Galvin's evidence he said: Nevertheless, these technological developments still did not satisfactorily address the installation of roof and rib support. Operators were still exposed to falls of rib whilst installing roof support. It was not until 2001 that both equipment manufacturers were able to offer protective guards against rib falls as well as temporary roof support systems on their continuous miners. Appin Colliery was nominated for an Occupational Health and Safety Innovation Award in August 2001 for the rib shield system that they developed for an ABM20 continuous miner. It was only in 2002 that these machines became available with OEM (original equipment manufacturer) supplied rib shields. Having developed this type of technology, it is not a matter of simply going back and retro fitting it on existing machines. The new generation continuous miners on which it is now fitted have a significantly different structural framework to that of older machines. Elements of the new roof bolting and rib bolting technologies may be able to be incorporated on some machines. However, this is also not straightforward because these machines usually have to be withdrawn from service and returned to a specialist surface workshop for these modifications to be undertaken. If this work is undertaken, it normally has to wait until a scheduled overhaul becomes due. It needs to be appreciated that a continuous miner is a high capital cost item of equipment and, therefore, spare machines are not readily available. A continuous miner has a typical capital cost of $2.5 million and an operating life of about 1 million tonnes before either being scrapped or rebuilt. They may be withdrawn from service for an overhaul after about 600 000 tonnes production, depending on the mine's replacement strategy once the machine produces 1 million tonnes.

13 Of course, it would be a matter for evidence in any prosecution that might come before the Court but it would not seem to me that because a machine had to be withdrawn from service in order to have modifications made to it in order to avoid a risk to safety that might result in the death of a miner, that a defence could readily be made out under s 53 of the Act (or under s 28 of the 2000 Act) that it was not reasonably practicable to ensure safety. This is regardless of the fact that the machine was worth $2.5 million, which in the scheme of coal mining operations does not strike me as being prohibitively expensive.

14 I also had the impression from parts of Mr Sutherland's evidence that although some risks were known to exist, it was impracticable to avoid them. For example, in his affidavit he said: The necessity to install roof bolts before rib bolts is generally accepted as basic to safety, but this will always mean that some exposure to unbolted ribs is inevitable while roof bolts are installed. Even the use of a single pass wide head continuous miner with rib bolters leaves a small period of time when operators may be exposed to unbolted ribs.

15 If the wall of the underground roadway is prone to spalling I find it difficult, if not impossible, to understand how exposing an operator to unbolted ribs can be justified even for a "small period of time". In this respect, whilst I note that the system for installing rib bolts at the time of the accident was using an Eimco mounted hydraulic rib bolter, one of the methods available at the Mine to install rib bolts was "windy borers". As Mr Sutherland explained in his evidence: This system required the men to manually operate the windy borer to install rib bolts. This system is generally the least favoured as it causes manual handling and ergonomic problems, the windy borers being relatively heavy and cumbersome. The 24 hour rule also had to be observed if windy borers were being used.

16 A photograph of a miner using a windy borer to insert rib bolts was contained in Dr Galvin's report. It involved a miner standing a short distance from the wall of the mine and drilling into it with a hand held drill. Again, in mines where the rib may fail, the miner using a windy borer is obviously at risk. I cannot understand how such equipment can be permitted to be used in an underground mine that has a history of rib failure or even where there is any prospect of rib failure.

17 The prosecutor also appeared to accept that the defendant's duty not to expose persons to risk did not extend to ensuring the safety of those persons. The particulars of the charge were that the defendant "failed to maintain a system of work which ensured that rib bolts were installed systematically in conjunction with roof bolting so as to minimise the area of unsupported rib at all times, thereby reducing, so far as practicable the risk posed by rib spall (my emphasis)."

18 All of this suggests that there might be a view circulating in relation to the coalmining industry that work in coalmines should be regarded differently from work in other industries in terms of a defendant's liability under the occupational health and safety legislation. The legislation makes no such distinction. The liability of an employer under the legislation, regardless of the industry in which it operates, is absolute; the notion of some risks being acceptable because of the nature of the work of coalmining is a notion that should not be countenanced. In this respect I note what Hungerford J said in WorkCover Authority of NSW (Inspector Keelty) v Crown in the Right of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 298: Senior counsel added that in the emergency services (fire brigade, bush fire brigade and emergency services) the " employees are inevitably exposed to the risks of injury and death by the very nature of their duties" so that "employees are routinely exposed to the risk of, and suffer, the risk of injury and death from fire and flood, for which negligible precautions are taken". There is no evidence before me, I have to say, to support such a submission and, in any event, I would be most concerned that where employees are routinely exposed to risks to their safety that the employer concerned did not take the necessary steps to ensure their safety.

19 There was, in the defendant's case, a submission that whilst it acknowledged culpability for the offence, the Court should take into account the role of the prosecutor, through its inspectors, in being actively involved in the development and approval of the Mine's Support Rules. For example, the 24-hour rule that "no rib up to the continuous miner shall remain for more than 24 hours in an unsupported state" was implemented in the Mine on the recommendation of a mines inspector. What Mr Sutherland said in his evidence in this regard would seem to be correct. Yet the curious situation arises where Senior Inspector Carey in his report into the accident, and upon which the prosecutor relied heavily, said: Rib spall (failure) had been identified as a hazard at the mine prior to the accident. The system of mining in place failed to adequately address the risk that hazard posed as it failed to manage the probability of exposure or the magnitude of the consequences of an exposure to the hazard. Allowing ribs to remain unsupported for up to 24 hours placed no limit on the possible advance between rib support installations. This approach along with then only bolting ribs to the back of the continuous miner meant that some tasks within the mining system must be conducted adjacent to unsupported ribs and at times between unsupported rib and continuous miner.

20 Of course, the mine owner cannot escape liability under the occupational health and safety laws by relying on approvals by the Department of Mineral Resources in relation to matters of safety, and in this case the defendant has not sought to do so. Nevertheless, where a mines inspector familiar with a particular mine recommends, and later approves, a rule that requires rib support to be in place within 24 hours it would be somewhat unsettling, I am sure, for a defendant to find itself being prosecuted by the body that recommended a particular safety rule with which the defendant had complied but which that body claimed was no longer adequate.

21 Whilst some harsh irony exists in the fact that reliance by the defendant on the 24 hour rule contributed, at least in part, to the prosecution of the defendant by the very body that recommended the rule be observed in the first place, the fact remains that, ultimately, responsibility for safety rested with the defendant and that responsibility could not in any way be delegated or transferred: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 at [41].

22 A further preliminary matter that deserves comment is that according to Mr Sutherland, the system required immediately after the accident by Inspector Nichols did not address the problem of exposure to unbolted ribs because Mr Davies was located between the last roof bolt and the place where the last rib bolt would have been installed under the system of systematic rib bolting required by the Inspector. Mr Sutherland said that "The Support Rules subsequently confirmed by Inspector Nichols and Senior Inspector Anderson also did not resolve this issue."

23 One would expect that after an accident involving a fatality, measures would be taken to ensure that such an accident did not happen again. There was no certainty, in my opinion, that the measures approved by the Department of Mineral Resources after the accident would eliminate the risk of material from the wall of the underground roadway falling onto an operator and causing injury or even death. Mr Carey could only say that alternative approaches that would allow the placement of rib bolts in parallel with the placement of roof support would "greatly reduce the risk posed by rib spall" but he could not say it would not eliminate the risk. 24 I cannot understand why the prosecutor, in its role as safety regulator and using powers such as those under s 63 of the Coal Mines Regulation Act, did not insist on measures being implemented that eliminated the risk associated with rib spall as identified in these proceedings and which had such a tragic result. In this respect, I note the evidence regarding the availability of rib protection shields on wide head machines.

25 Some of the comments I have made of a general nature are relevant to the question of the level of the defendant's culpability and I will return to those where necessary. However, as I have already stated the primary consideration in sentencing is the nature and quality of the offence viewed objectively: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Constructions Australia v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at 196. The maximum penalty in this case is $550,000.

26 In Inspector Woodington v Thiess Services Pty Ltd (No 2) [2004] NSWIRComm 126 I observed at [7] to [9]: 7 Matters that are relevant to a consideration of the objective seriousness of the offence are the nature and quality of the offence and whether it involved obvious or foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, the practical and potential consequences flowing from the commission of the offence including whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety. The Court is also required, in fixing any penalty, to consider the need for both general and specific deterrence: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71]-[80]. 8 A secondary consideration is the subjective features of the offence, that is, the facts concerning the offender. This will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified. The penalty to be imposed must generally be such as to compel attention to occupational health and safety generally so as to ensure that workers whilst at work will not be exposed to risks to their health and safety: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; Capral Aluminium.

9 In sentencing an offender the Court is also required by s 21A of the Crimes (Sentencing Procedure) Act 1999, to take into account prescribed aggravating and mitigating factors where they are relevant and known to the Court.

27 This is the approach I have taken in the present proceedings. It is also relevant, however, to have regard to what the Full Bench said in Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [31] to [33] in relation to s 15 of the Act which, I consider, applies with equal force to s 16(1): 31 The incident that led to the prosecution of the respondent involved the death of an employee and, it would appear from the evidence, a narrow escape from at least serious injury by another employee. Under s 15 of the Occupational Health and Safety Act , however, death or serious injury arising out of an industrial accident will not necessarily attract a higher penalty than if no death or serious injury occurred. As the Full Court of the Industrial Court of New South Wales observed in Haynes v C I & D Manufacturing Pty Limited (1995) 60 IR 149 at 158-159: The general duties created by the OHS Act such as in ss 15 and 16 are clearly directed, we think, at obviating "risks" to safety in the workplace …

32 In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

33 Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case.

28 In the present case, the risk was that a person working in the Mine might be struck by material falling from the wall of the Longwall 13 Installation Roadway thereby suffering injury. The amended charge alleged that the defendant's failure, in exposing persons to risk, was the failure "to maintain a system of work which ensured that rib bolts were installed systematically in conjunction with roof bolting so as to minimise the area of unsupported rib at all times, thereby reducing, so far as practicable the risk posed by rib spall." 29 It is clear from the evidence that the defendant was aware that the coal seam it was mining had a history of injury to persons working the seam caused by rib failure. It is also clear from the evidence that rib bolting had the effect of reducing the probability of rib spall and it follows that the greater the degree of rib bolting the less likelihood of rib failure. The defendant used various methods of rib bolting, including the use of hydraulic rib bolters fitted to continuous miners that allowed the placement of rib bolts in parallel with the placement of roof support. Had this been the method used in Longwall 13 Installation Roadway on 6 March 2001 the failure alleged in the amended charge could not have been made out.

30 As it was, the rib on the right hand side wall of the roadway on the evening shift of 6 March 2001 was not bolted within a distance of approximately 10 metres from the rear of the continuous miner. If there were no further considerations one would have to conclude the offence was serious indeed: It meant that persons working in the vicinity of the continuous miner were at risk of being struck by material falling from the wall; the defendant knew of the risk; and, the defendant took no steps to avoid the risk by systematically bolting, as part of the mining cycle, using equipment that was available at the Mine. Moreover, nine persons were put at risk of injury and Mr Davies was fatally injured.

31 Mr Buchanan referred to my decision in Inspector Maddaford v Mulgoa Quarries and CSR Limited [2003] NSWIRComm 480 where I concluded at [16] that there was reasonable doubt about whether one of the consequences of the defendants' failures in that case was the death of a person and that, consequently, in assessing the degree of seriousness of the risk I did not take into account the death of the person, Mr Besant. Whilst I consider my conclusion in that case was entirely consistent with what the Full Bench said in Rodney Morrison v Powercoal Pty Ltd, in the present case a consequence of the defendant's failure to reduce the risk of injury was the death of Mr Davies. In my opinion, that fact should be taken into account in assessing the degree of seriousness of the risk to health and safety to which the crew were subjected on the evening shift of 6 March 2001.

32 However, what also has to be considered is that the particulars of the charge in this case are framed in such a way that they allege a failure to reduce exposure to risk, not a failure to prevent exposure to risk. Thus, implicit in the particulars of the charge is an acknowledgement by the prosecutor that it was not reasonably practicable for the defendant to eliminate exposure to risk. In this case it would appear that the prosecutor accepted that even if the defendant had used the methods advocated by Senior Inspector Carey, although the risk would have been greatly reduced, there remained, nevertheless, a risk. In other words, it could not be said with any certainty that if the methods described by Mr Carey had been in use on the evening shift on 6 March 2001 there would have been no risk and Mr Davies would not have been killed. I consider that I should take this into account in determining the objective seriousness of the offence.

33 Whilst the foregoing matters indicate a serious offence, there are other countervailing considerations much of which I have already touched upon. The defendant was relying on the 24-hour rule, that is, it believed it had a 24-hour window in which to install rib support before it was considered that rib failure constituted a risk to safety. The 24-hour rule was recommended and approved by the Department of Mineral Resources following injuries to a colliery fitter in 1995. The defendant relied on the 24-hour rule but, also, senior and experienced members of the crew carefully inspected and tested the rib in Longwall 13 Installation Roadway before commencing work on the evening shift on 6 March 2001. There was clearly no wilful or reckless disregard for safety on the part of the defendant, which considered it was following a longstanding and appropriate procedure.

34 I consider that although the 24-hour rule insisted upon by the Department of Mineral Resources was only a minimum standard, it created a false sense of security on the part of the defendant and that is a factor to be taken into account in ameliorating the objective seriousness of the offence. I say this because the Department knew about the risk associated with rib spall at the Mine but, nevertheless, approved a rule that "All exposed ribs and pillar corners are to be supported to the design in Plan No. RIBSUP within 24 hours of excavation." The Department would also have understood, in my opinion, that in approving the rule (albeit only on verbal advice, according to the evidence), if there was no evidence of risk of material splitting away from the ribs of the roadway - and the only way this might be detected is by visual inspections and soundings - it might be up to 24 hours before the ribs were bolted.

35 Ultimately, however, I consider the defendant placed too much reliance on the 24-hour rule. The rule represented a minimum standard and should not have been regarded as a substitute for the defendant's own safety practices, which had to be moulded to the peculiar conditions at the Mine as they were met in the course of mining. As Dr Galvin said in his evidence "It is a reality that the state of the roof and sides in underground coal mining can only become apparent once mining has taken place and even then, this state cannot also be fully quantified." The 24-hour rule could have no application where it was apparent that a wall represented a risk to safety. Measures would need to be taken immediately to avoid the risk.

36 The evidence in this case revealed that the crew on the evening shift on Monday 5 March 2001 refused to work in the Longwall 13 Installation Roadway due to the presence of overhanging ribs on the right hand or block side. This is against a background of a history of injury in the mining of this coal seam caused by rib failure. Thus, the warning signs were there. Whilst a careful check was made of the ribs before work commenced on the evening shift of 6 March 2001 by men of great experience, in circumstances where conditions might change over short periods of time and within short distances, the situation called for a heightened sense of danger, with the most prudent course being to reduce the risk of rib spall by bolting up the ribs as far as possible.

37 One has to be careful about being judgmental in hindsight. But in the face of a statute that has been operating for many years and which imposes a strict liability on employers to ensure the safety of workers, and in circumstances where workers are continually working in dangerous and often unpredictable - even unknown - conditions, the very highest standards of safety must be observed.

38 In Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at [32]-[33] the Full Bench referred to the duty imposed on employers by the Occupational Health and Safety Act by quoting from the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 at [56]-[59]: 56 In short, the duty is to be proactive. This duty was, in my view, correctly and forcefully stated by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995 at p18) (approved recently by Full Benches of this Court in Profab at [37] and Riley v Australian Grader Hire (2000) 103 IR 143 at [15]): … the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

57 Equally forceful observations have been made, an example of which includes the judgment of Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467, in which his Honour held (at 470): In their context and purpose, there would appear to be no reason to make any implication that the words "to ensure" are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain. 58 It is pertinent to observe also the comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.

59 I would also concur with the observations of Wright J, President, in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 where, in the context of a s15 prosecution, his Honour observed that the Act imposed (at 209): ... an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.

39 In the present case, in the prevailing circumstances, the defendant was not proactive in the manner required by the Act and did not take all of the necessary precautions that were available to it and thereby failed to reduce the risk of exposure as alleged in the charge.

40 In Capral Aluminium at [74] the Full Bench observed that both general and specific deterrence are matters "which should normally be given weight of some substance in the sentencing process". In relation to general deterrence the Full Bench added at [75] that "The need for general deterrence in relation to serious offences under the Act is undeniable."

41 Since 2001 there have been 12 prosecutions in the Commission in Court Session involving 14 deaths in mines: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor [2001] NSWIRComm 130; Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298; Rodney Morrison v Tahmoor Coal Pty Ltd [2002] NSWIRComm 327; Rodney Dale Morrison v Coal Operations Australia Limited [2003] NSWIRComm 249; Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd [2003] NSWIRComm 292; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342; Rodney Morrison v Tecrete Industries Pty Ltd [2003] NSWIRComm 371; Rodney Morrison v Anglo Coal (Dartbrook Management Pty Ltd) [2003] NSWIRComm 397; Rodney Morrison v Gregory Alan Gardner [2003] NSWIRComm 440; Rodney Morrison v Waratah Engineering Pty Limited [2004] NSWIRComm 38; Rodney Morrison v Akula Pty Limited formerly known as RaiseBore Australia [2004] NSWIRComm 41; Inspector Morrison v Cumnock No.1 Colliery Pty Ltd [2004] NSWIRComm 151.

42 In 2001, the industry with the highest incidence of workplace injury was mining (45.4 injuries per 1,000 wage and salary earners compared to 15.1 injuries per 1,000 wage and salary earners for all industries): Report by General Purpose Standing Committee No. 1 of the Legislative Council entitled "Serious Injury and Death in the Workplace", May 2004. The need for general deterrence in the mining industry is, as the Full Bench observed in Capral, "undeniable".

43 I have also had regard to the need for specific or personal deterrence. The Mine is currently in "care and maintenance" mode although, as Mr Sutherland deposed in his affidavit, the Mine may be used in future to access one of the lower seams. Nevertheless, I regard the offence as more in the class of an aberration than any indication that the defendant is likely to re-offend, even if the Mine were re-opened. I do not propose to include in the penalty a significant element for specific deterrence.

44 Turning to relevant subjective factors, the Court is required to take into account the fact that the defendant pleaded guilty and when the plea was entered: s 22 of the Crimes (Sentencing Procedure) Act. The original charge was filed on 26 February 2003 and a plea of not guilty was entered on 17 June 2003. The matter was listed for hearing for three weeks commencing 7 June 2004. On 3 May 2004 the defendant filed a notice of motion seeking to vacate the hearing to commence on 7 June because of late advice by the prosecutor concerning certain evidence. On 24 May senior counsel for the defendant advised the Court that there had been some developments and a request was made to stand the matter over until 27 May 2004.

45 On 27 May the Court was advised that there was every possibility the days reserved for hearing would not be required except perhaps two. On 23 June 2004 the prosecutor sought leave to amend the charge. The Court accepted the amendment and the defendant pleaded guilty to the amended charge. 46 It would appear that certain material received late by the defendant had some bearing on its response to the charge and following negotiations with the prosecutor it was agreed that the defendant would plead guilty to an amended charge. Following the amendment, there was an immediate plea entered. As Haylen J observed in Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80 at [72]: In relation to subjective features, I accept the defendant's submission that effectively there was an early plea once the summons was amended and a significant allegation regarding a failure to supervise had been omitted from the charge. It may well be, as submitted by the prosecutor, that the amended summons collected the various charges (with the exception of the charge relating to supervision) which had been made in three separate summons but in my view it would be wrong to treat the prompt response of the defendant in pleading guilty literally within days of the amended summons being filed as reflecting nothing more than the inevitable (now to be regarded as an appropriate consideration in this context) and, overall, as a late plea.

47 Similarly, the amended charge in this case represented a material change from the original charge and in light of that and other considerations, including the late receipt of a report from Mr Carey, the defendant entered, promptly, a plea of guilty to the amended charge thereby saving the prospect of a three-week trial. In those circumstances, I propose to discount any penalty by 25 per cent for the utilitarian value of that plea: R v Thompson and R v Houlton (2002) NSWLR 383.

48 In Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor [2001] NSWIRComm 130, Walton J, Vice President referred to the significance of the absence of any adverse record in relation to a mine that had been operating for a long period. At [162] his Honour observed: In particular, I have had regard to the long period over which the mine has operated without serious incident and to the efforts by the first defendant after acquiring the mine in 1994 to further improve safety. These factors are particularly important given the inherently dangerous nature of the first defendant's operations: WorkCover Authority of New South Wales v Warman International Ltd [2001] NSWIRComm 62 [at 90].

49 The evidence was that the defendant had commenced operations in the Wambo seam in 1972 and commenced mining in the Whybrow seam in 1979. This is the first time the defendant has come to the Court's attention.

50 I have also had regard to the defendant's cooperation with the investigating authorities, its obvious commitment to occupational health and safety as the evidence of Mr Sutherland shows, and to the contrition expressed by the defendant in relation to the offence manifested, to some extent, by the assistance provided to the family of Mr Davies.

51 I consider that an appropriate penalty in this case, having regard to the relevant objective factors, is $200,000. This is to be reduced by 25 per cent for the utilitarian value of the guilty plea and a further 10 per cent for other subjective factors. This results in a fine of $130,000.

52 I make the following orders: 1) A verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $130,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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