Jurisdiction:SafeWork NSW v Boral Cement Limited (No. 2) [2026] NSWDC 88 | Case summary | Zoe

NSWNSWDC

SafeWork NSW v Boral Cement Limited (No. 2)

[2026] NSWDC 88

District Court of NSW|2026-04-08|Before: Russell SC DCJ

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2026-04-08

Before

Russell SC DCJ

Catchwords

CRIMINAL LAW – prosecution – work health and safety –
duty of persons undertaking business – risk of death
or serious injury
– where there are concurrent duty holders – whether contractors were

Source

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Catchwords

CRIMINAL LAW – prosecution – work health and safety –duty of persons undertaking business – risk of deathor serious injury– where there are concurrent duty holders – whether contractors wereagents of the defendant unders 244 of WHS Act OTHER – bucketelevator conveyor maintenance – conveyor went into an uncontrolled freerun – fluid coupling failed– explosion of metal debris struckworker on head – failure to stop work and conduct an updated riskassessment whena change in work process was identified

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: SafeWork NSW v Boral Cement Limited (No. 2) [2026] NSWDC 88

Hearing dates: 27 – 31 October, 3 – 7, 10 – 14, 20 – 21 November 2025

Date of orders: 8 April 2026

Decision date: 08 April 2026

Criminal

As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt.
The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.
I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence.
My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).
I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4.

The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at [68].
The reasonable foreseeability of an incident is relevant to whether the pleaded measures were reasonably practicable, but is not necessarily determinative: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.
The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
The words “reasonably practicable” indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
Breach of the duty under s 19 must be assessed prospectively and not through “the prism of hindsight”.
Evidence of actions taken by a defendant after the incident is admissible on the question of whether the steps particularised in the Summons were reasonably practicable: Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243 at [9] and [35].
An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].
The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga at [130].
Causation must be assessed having regard to what actually occurred: Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCA 288 at [99].

Dal Pont, Law of Agency, 4th Edition, says in par 1.4 that a crucial element in determining that there is an agency relationship is to identify consent or assent to the creation of the relationship. Agency relationships necessarily involve an agent acting in a representative capacity for the principal, whether for the purpose of creating contractual relations for the principal or to represent the principal in a more restricted ambit. Dal Pont also says (par 1.6) that an express stipulation by the parties that their arrangement is not to be construed as an agency is not necessarily determinative, although it is a weighty consideration in the absence of evidence that the label is a sham.
Dal Pont also says (par 1.7) that any definition of the term agent in legislation operates in place of its legal definition. If that term is not statutorily defined, its meaning “is determined by the purpose of the Act and the context in which reference to the term is made.”
As an example, Dal Pont refers to Kench v Adams (1906) 23 WN (NSW) 48. The defendant Adams was charged with the criminal offence of selling adulterated milk. Adams was a dairyman. Adams employed an agent named Spindler to deliver milk for him on commission. In turn Spindler employed a boy named Leslie to assist him in delivering milk. A sample of the milk in question was sold by Leslie to a sanitary inspector, who laid a criminal charge against Adams. Adams had nothing to do with Leslie who was engaged and paid by Spindler.
Justice Pring held that having regard to the object of the Public Health Act 1902 (NSW), the word “agent” must have a liberal construction placed upon it. His Honour held that “agent” includes any person who sells goods of the defendant when the money, the product of the sale, goes into the defendant’s pocket. The money the result of the sale went into Adams’ pocket. His Honour held that “the boys may be said to be the defendant’s agent, because otherwise it would be very easy to evade the Act”. Section 79(3) of the Public Health Act 1902 said that any sample of food obtained by an inspector “shall be deemed to have been sold to such officer by the person dealing in it or having it for sale or his agent or servant”. Thus there was a factual question to be determined, which was answered by looking to the common law notion of an agent as a person acting in a representative capacity for a principal, in this case by selling the defendant’s milk.
Section 3(1)(a) of the WHS Act provides that one of the objects of the legislation is “protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant”. Section 16 of the WHS Act provides that more than one person can concurrently have the same duty, and that each duty holder must comply with that duty to the standard required by the legislation, even if another duty holder has the same duty. If more than one person has a duty for the same matter, then each person retains responsibility for the person’s duty in relation to the matter.
The danger which was perceived in Kench v Adams was that unless a defendant was responsible for the acts of his agents, it would be very easy to evade the Act. Having regard to s 16 of the WHS Act, that is not a concern in relation to the WHS Act.
There is a simple factual question to be determined. It is whether, as a matter of fact, Nepean and Fenner were agents of Boral in carrying out the work on EL13, and thus under s 244 of the WHS Act Boral is liable for the failures of Nepean and Fenner. That question is dealt with below.

Boral was the owner and operator of the Boral Cement Facility at New Berrima. As part of its planned maintenance a shutdown was conducted in early 2022. To carry out the shutdown Boral engaged a large number of specialist contractors. The particular job which is the subject of these proceedings was the replacement of the conveyor belt on the bucket elevator EL13 (sometimes called EL013). The conveyor belt was to be replaced and some of the buckets were to be replaced. Two contractors were engaged to carry out the work. Nepean was engaged to perform both tasks. Fenner was engaged to join (splice) the two ends of the new conveyor belt together, so that it could run as a continuous loop. Beumer Group Australia Pty Ltd (Beumer) was the original equipment manufacturer (OEM) of EL13. Beumer was engaged to provide advice and support during the replacement of the belt and the buckets.
Reference was made to several decided cases which have considered the duty imposed upon a principal contractor, when there is a specialist sub-contractor on site carrying out specialised work.
Boral submitted (MFI 44, pars 12.2-12.4) that:
Boral did not have the relevant engineering expertise in the EL13 belt replacement.
Boral engaged Beumer to advise and supervise Nepean and Fenner on the EL13 work.
Nepean and Fenner were both specialist contractors.
The incident occurred because Nepean did not follow Beumer’s advice.
The prosecution has not proved that the pleaded measures should have been adopted by Boral.
Underlying that formulation was the proposition advanced many times during the evidence of the key Boral witness (Mr Mick Davis) that Nepean was the specialist contractor performing and supervising the EL13 work, and that Nepean (but not Boral) had the obligation to take appropriate steps to ensure safety. Examples are set out below in the summary of the evidence given by Mr Davis.
I turn to consider the relevant cases upon the subject of the work health and safety duties of a principal, where it engages a specialist contractor.
In Hamersley Iron Pty Ltd v Robertson (Unreported, Supreme Court of Western Australia, Steytler J, 2 October 1998), the facts were that a worker was killed when a reclaimer, which is a specialised piece of mining equipment, collapsed.
A magistrate had convicted the appellant of a breach of s 9(1)(a) of the Mines Safety and Inspection Act 1994 (WA). That section provided as follows:

The following principles can be extracted from these cases:
The legislation imposes a duty on a PCBU not only to do what is reasonably practicable to ensure safety, but to take reasonable care that contractors whose assistance is necessary do not expose workers to hazards.
A PCBU can call upon expertise which it does not itself have, and its own lack of expertise (if any) and the expertise of the independent contractor must be taken into account.
If the task is one which demonstrably falls outside the expertise of the PCBU, and if it appears that the independent contractor has been carefully and safely performing its work, then it would ordinarily be difficult to conclude that the PCBU has breached the duties imposed upon it by the legislation; it would not, in circumstances of that kind, ordinarily have been practicable for the PCBU to have done more.
The court must look at the facts of each case, not with the benefit of hindsight, nor with the wisdom of Solomon, but remembering that one of the chief responsibilities of the PCBU is the safety of those who work for it.
The question of control over the contractor is relevant to the determination of what is reasonably practicable.
If a PCBU engages a person who has the skill and expertise, including knowledge of appropriate safety precautions which the PCBU itself may not have, the PCBU may be entitled to rely on the contractor to see that the work is carried out safely.
However, there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken.
It is unlikely to be enough for a person to merely assume that someone else will attend to safety requirements, but if such an assumption is based upon inquiries made, assurances given, and a reasonable belief as to the skills of the contractor, it may be well-founded.
The question of what is reasonably practicable is a matter of fact and degree in each case.
In considering the duty to be imposed upon a principal contractor, it is necessary to keep in mind s 16 of the WHS Act which provides that more than one person can have a duty and that each duty holder must comply with that duty to the standard required by the Act, even if another duty holder has the same duty. Section 16(3)(b) requires the court to consider “the extent to which the person has the capacity to influence and control the matter”.
Because the question of what is reasonably practicable in the context of a principal and a contractor with specialised skill is a matter of fact and degree, I will defer further consideration of the duties of Boral until after I have recorded my findings of fact later in this judgment.
It is noted at this stage that Boral did engage Beumer as a specialist contractor – it was the manufacturer of EL13 and Mr Gill from Beumer was the “subject matter expert”. However, Beumer was not engaged to perform the work on EL13. It was engaged to provide advice on how to safely do the work. That advice was available to Boral, Nepean and Fenner.

The Boral Cement Facility was a large industrial site with many component buildings and machines. Part of the site was a large seven storey structure known as the preheater tower. Part of the preheater tower was bucket elevator EL13. The elevator was encased in a metal chute. It comprised a continuous conveyor belt which ran in a loop from a top pulley on Level 7 to a tail pulley at ground level (in the “boot” of the elevator) and back up again.
Attached to the conveyor belt were 244 buckets each of which weighed 29 kilograms. Raw material used in the production of cement and related products entered the chute at ground level. As the belt rotated, the ascending side of the belt moved from the tail pulley and took the material in the buckets up to the top level. At that point the material was discharged to be used in the manufacture of products. The belt then continued to move over the head pulley and the descending side of the belt carried the empty buckets down to the boot to be filled up once again and taken up to Level 7.
The drive mechanism for EL13 was situated on Level 7. An electric motor provided rotational power to turn the head pulley and thus move the belt with the buckets attached. This electric motor was connected to a Voith Fluid Coupling. The rotational power which passed through the fluid coupling then went to a gearbox. From the gearbox the rotational power was transmitted to a fixed coupling attached to the head pulley. By this arrangement, the considerable rotational energy generated by the electric motor was smoothly transmitted through the fluid coupling into the gearbox and through the gear mechanism, the head pulley was rotated at an appropriate speed to move the belt with the buckets attached.
In addition there was also, attached to the gearbox, an auxiliary motor (also described in the evidence as a pony motor, an inching motor or a barring motor). This could be used to turn the head pulley at one-tenth the speed of its normal number of rotations, for the purpose of carrying out maintenance. The intended purpose of the auxiliary motor was to turn the head pulley at a very slow speed, so that the belt could be rotated for short distances for maintenance purposes.
From this description of EL13, it can be understood that in normal operation the ascending side of the belt was much heavier than the descending side of the belt, because on the ascending side of the belt the buckets were full of product, and on the descending side of the belt the buckets were empty. To guard against the risk of the belt running backwards because of this imbalance in mass (for example, if it lost power), EL13 was fitted with an anti-rollback device, also known as a “sprag clutch holdback” mechanism. This device, which was part of the gearbox, prevented the belt from rotating backwards. The sprag clutch did not prevent the belt running forwards, i.e. in its normal direction of rotation.
There was no evidence that there was a brake of any sort on the auxiliary motor, although there was reference in the evidence to conversations alleged to have occurred concerning an “inch brake”. It was an agreed matter that there was no evidence of EL13 having an inch brake, which would hold the belt, or stop it rotating in its forward direction while the auxiliary motor was turning the belt.

In February 2021 Mr Marty Patterson from Nepean met with Mr Mick Davis from Boral to discuss whether Boral could engage Nepean to provide “site services”. In an email dated 25 February 2021 (DX 1) from Mr Patterson to Mr Davis, Mr Patterson referred to the meeting and asked whether it would be possible to get some Nepean workers inducted to Boral sites “so we could be ready to go”.
That email attached some documents concerning the capabilities of Nepean and the rates which it charged. In the colour brochure attached by Mr Patterson, Nepean described itself as “the most trusted partner in high value, innovative and sustainable engineering solutions”. The brochure offered services including engineering design and project management; design and manufacture of special purpose machinery; heavy to light complex fabrication; precision machining, manufacturing of moulds and press tools. The brochure referred to Nepean being in business for over 45 years and having over 50,000 square metres of high-tech manufacturing space suited to delivering complex projects. Areas in which Nepean claimed expertise included precision manufacturing, mining and earth moving, infrastructure and civil works, pharmaceutical, scientific, aerospace and defence. A map of the world showed Nepean having business locations on every continent, including at four locations in Australia.
The schedule of rates which was an attachment to the email referred to the engineering services which Nepean provided, which included “OEM Equipment overhauls”.
The third attachment to the email sets out pictures of Nepean equipment and a description of that equipment. The slideshow also includes photographs of past projects, being large jobs done in heavy industry.
That material alone is sufficient for me to reject one of the submissions made by SafeWork, which was that Nepean was engaged as a “labour-hire” company. The submission was not developed to any great extent, but it is plain from the services offered by Nepean and accepted by Boral that it was much, much more than a provider of workers. Further, Mr Patterson, the senior Nepean man on the job, agreed in cross-examination (discussed below) that Nepean was engaged not as a labour-hire company, but because of its engineering and industrial expertise.
Contact continued between Mr Patterson and Mr Davis with a view to Nepean obtaining work from Boral. In a chain of emails concluding on 11 November 2021, there was discussion between Mr Davis and Mr Patterson about arranging Boral site inductions for Nepean employees (DX 2).
By an email dated 12 November 2021 (DX 3) Mr Davis indicated to Mr Patterson that he would “get the ball rolling in regards to a contract with Boral”. On 25 November 2021 a contract was executed. This is dealt with below.
On 7 February 2022 (DX 4) Mr Patterson provided to Mr Davis the names, phone numbers and email addresses of himself and eight other Nepean employees. Most of the people nominated in that email ended up working on the EL13 job.

Mr Chris Jansen was a project manager and mechanical engineer employed by Nepean at the time of the incident. In his CV (PX2, Tab 29) Mr Jansen described Nepean as “[p]roviding full engineering service to the mining, manufacturing, infrastructure, scientific, defence, aerospace, and pharmaceutical sectors.” He listed a number of key projects on which he had been engaged while working with Nepean. All were major industrial projects.
Mr Patterson provided a short CV describing himself as a “Senior Site Supervisor” (PX2, Tab 29B). That document described Mr Patterson as an experienced site supervisor with extensive experience in management of onsite projects, including project management, site crew supervision and commissioning of small to large projects. He was a qualified boiler maker and welder by trade and had been a site supervisor and manager in heavy construction for 32 years.
Mr Bryan Felix was a boilermaker and sheet metal worker who finished his apprenticeship in about 2012. He had worked on a wide variety of projects including pipe work, welding and fabricating. Mr Felix was the leading hand at the EL13 job, working under the supervision of Mr Patterson. He said that as the leading hand he was a senior tradesman, who would give directions to other workers if needed. A lot of his previous work had been for BlueScope doing upgrades and repairs on structures. He had worked on conveyors and flooring which needed replacing.
Mr Daniel Bevan worked for Nepean as a boilermaker, performing welding, metal fabrication and site work. He had a list of tickets including rigging, dogging, crane and elevated work platforms. He had a Certificate in Metal Engineering.
Mr Brendan Slater was employed by Nepean as a boilermaker, performing industrial maintenance, welding, fabrication and rigging.
These were the five Nepean witnesses who gave evidence. All were appropriately qualified and had significant experience in industrial engineering. That short overview of the Nepean workers on EL13 is a clear demonstration that this is not a labour hire case.

This Code (PX10, Tab 110) is also an approved Code of Practice under s 274 of the WHS Act. It provides practical guidance on how to achieve the standards of work health and safety required under the WHS Act and the WHS Regulation and effective ways to identify and manage risks.
Section 1.1 of the Code defines “plant” to include machinery and equipment, and specifically mentions conveyors. That section says that plant “is a major cause of work-related death and injury in Australian workplaces”.
Section 1.2 of the Code deals with “Who has health and safety duties for plant in the workplace”. This section says that there are a number of duty holders who have a role in managing the risks of plant in the workplace, including PCBUs and installers. A person can have more than one duty and more than one person can have the same duty at the same time. Early consultation and identification of risks can allow for more options to eliminate or minimise risks and reduce the associated costs.
Section 1.3 of the Code deals with “What is involved in managing risks associated with plant?”. Section 1.3 refers to the “systematic process” requiring:
Identification of hazards
Assessment of risks
Elimination of risks so far as is reasonably practicable
Controlling risks if it is not reasonably practicable to eliminate the risk
Reviewing control measures to ensure they are working as planned.
The section refers to s 46 of the WHS Act, dealing with the duty to consult with other duty holders. Examples given include where:
The PCBU engages workers to carry out work
The PCBU directs or influences workers in carrying out work
Other persons may be put at risk from work carried out in their business or undertaking
The PCBU manages or controls a workplace or the fixtures, fittings or plant at a workplace
The PCBU’s business or undertaking involves installing, constructing or commissioning plant or structures in a workplace.
Section 2 of the Code deals with the risk management process. Section 2.1 deals with “Identifying the hazards” and says that information about hazards, risks and control measures relating to plant at the workplace can be obtained, inter alia, from manufacturers or suppliers of the plant; or specialists, for example engineers.
Sections 2.2 and 2.3 of the Code deal with assessing the risks and controlling the risks, and refer to the well-known hierarchy of control measures.

Other safety publications and literature that were available to Boral before the incident were tendered (PX 11, Tabs 112 – 123).
Behind Tab 112 is a WorkCover NSW document titled “*!*Hazpak Making Your Workplace Safer: A Practical Guide to Basic Risk Management” dated 1996. This has been superseded by the SafeWork Code of Practice: How to manage work health and safety risks, August 2019 (PX 11, Tab 109).
Behind Tab 113 is an article from Creamer Media’s Mining Weekly titled “Reverse running on inclined conveyors prevented” dated 29 May 2015. The article says that sprag clutch holdbacks can instantaneously prevent any runback of a conveyor. It outlines the risks associated with a conveyor reverse running, which include the exploding of a fluid coupling and the overloading of drivetrain components.
Behind Tab 114 is a United States Department of Labor Mine Safety and Health Administration Metal and Nonmetal Mine Safety and Health Report of Investigation for “Surface Nonmetal Mine (Cement) Fatal Machinery Incident” dated 3 June 2002. The report considers an incident where a catastrophic failure of a component caused a bucket conveyor to overspeed in the reverse direction and send metal fragments flying towards a worker who was fatally injured.
Behind Tab 115 is an extract from the Renold website titled “SH Series Sprag Clutch Holdbacks”. The extract sets out features and applications of a sprag clutch holdback including the prevention of any runback of a conveyor.
Behind Tab 116 is a Safequarry Incident Report titled “Sudden Fluid Coupling Failure” dated 3 September 2012. It refers to an incident where an automatic shaft brake failed to hold the weight of an unbalanced load on a cement mill causing the mill to turn in the reverse direction. The fluid coupling went into overspeed and subsequently failed resulting in fragments being ejected into the surrounding area at speed.
Behind Tab 117 is an extract from MRO Canada’s Maintenance Voice titled “Understanding Coupling Failures” dated 1 December 2008. It covers reasons why fluid couplings fail, which includes by running at excessive speeds.
Behind Tab 118 is the Voith “Installation and Operating Manual” version 11 dated 10 July 2017 and other Voith documents. The manual deals with the risk of explosion if the coupling runs at a speed exceeding the rated speed. It provides that “it is mandatory to observe the maximum permissible speed!” (p 3317). The manual says a device that prevents overspeed (eg brake or backstop) should be provided on machines on which overspeed is possible (p 3335) and that the entire system should be checked to see if it is equipped with such a device (p 3281). It also states that overspeed can cause damage to the coupling (p 3281), that high temperature of the coupling is an explosion hazard (p 3286) and that operating fluid that sprays off the coupling can cause serious injury (pp 3282, 3323).
Behind Tab 119 is a document from the International Materials Handling Conference – Beltcon 8, Johannesburg, 1995 titled “Incline Conveyors: The Importance of T2 Take-Up Tension to Stop Runback”. The document was referenced in a bulk-online forum titled “Reasons For Fluid Coupling Damage*?*” which is also behind Tab 119. The document deals with four case studies of incidents of conveyor runback. It observes that conveyor runback can cause the fluid coupling to accelerate in reverse to excessive speeds, which can result in damage to the fluid coupling and the expulsion of debris and fluid. It says that conveyor runback can cause immense damage and fatalities.
Behind Tab 120 are forum posts between September 2011 and December 2012 from an online forum titled “Fluid Couplings Blasted”. The forum posts discuss an incident where a conveyor went into runback and the fluid coupling exploded. Members of the forum discuss potential issues including the possibility of a severe overspeed event. Members also discuss their own experiences with similar incidents.
Behind Tab 121 is an article published in the Engineering and Mining Journal titled “Stored Energy in Conveyor Belts – Managing the Risk” by Larry Goldbeck dated December 2006. The article deals with managing stored energy in conveyor belts. It points out that “[t]he weight of the belt alone can make the belt travel forward or backwards”. Brakes and backstops can prevent runback situations but should not be relied upon to prevent the belt from moving on its own. To prevent a belt from moving under its own power it should be physically restrained or blocked. It states that “the belt may move in either direction based on the conditions present” and these conditions can change as work progresses.
Behind Tab 122 is a Safety Alert from Resources Safety and Health Queensland titled “Unplanned movement of conveyor belt” dated 20 December 2021. The alert summarises an incident where a conveyor belt slipped through a belt clamp and travelled approximately 300 metres during belt retraction works. It sets out the causes of the incident, key issues and recommendations to prevent a reoccurrence of the incident.
Behind Tab 123 is a Safety Alert from the U.S. Department of Labour Mine Safety & Health Administration titled “Working in Proximity to Belt Conveyors”. The alert deals with best practices during belt conveyor maintenance. Stored gravitational energy must be isolated and controlled. This includes blocking the conveyor to prevent movement in either direction.

Mr Ragg has been employed by Boral Cement for 32 years and was a plant attendant at the time of the incident. His supervisor was Mr Paul Smith. Mr Ragg was aware that work was being done on EL13 but he was not involved in planning that work. He was not involved in any risk assessments or toolbox meetings about the work being done on EL13.
On 13 February 2022 Mr Ragg was with another Boral employee Mr Daniel Burgess. He received a radio call from Mr Smith. Mr Smith asked them to come to the Authority To Work (ATW) room. Mr Ragg and Mr Burgess went to the ATW room, where Mr Smith told them that EL13 had to be barred into position so that it could be set up for work to be done on the next day. The job of “barring into position” means slowly inching the conveyor belt by means of an auxiliary motor, which Mr Ragg also called a “pony motor”. He said that this smaller motor enables the conveyor belt to move slowly so that it can be positioned just where it is required for work to be done on it.
Mr Ragg said that the ATW room was a workroom where contractors and workers went to fill out their ATW forms, which they had to do before each job. Mr Smith told Mr Ragg and Mr Burgess to go to EL13 and see the crew working up there. That crew had to come to the ATW room and take their locks off, so that a lock board could be opened and a key could be obtained to de-isolate the barring drive. Mr Ragg asked Mr Smith what the job was on EL13, but he was told “you would have to talk to the work crew and find out off them what the job was”.
On the afternoon of 13 February 2022 Mr Ragg saw Mr Mick Davis come out of the ATW room after speaking with Mr Smith in relation to getting the EL13 job done. Mr Ragg understood that Mr Davis was the “maintenance manager”. Mr Davis said to Mr Ragg, “I’ve just let Paul know what the job is”. This occurred at about 4 o’clock in the afternoon.
Mr Ragg and Mr Burgess went to EL13, met the work crew and went back up to level 7 with them. Mr Ragg was told that a join had to be made in the elevator belt and that the belt had to be moved so that it could be set up for this join to be done the next morning (Monday 14 February). Mr Ragg had previously done barring on EL13. He understood that the crew were to do a “hot join” on the top of the belt, so they had to position the join dead centre at the top.
Mr Ragg unlocked the motor, meaning he de-isolated it. Mr Ragg did not know whether there was any sort of brake on the conveyor belt on EL13. He pushed the start button for the auxiliary motor. He said: “The pony motor started up, the belt started moving, and then within seconds it just went, it started screaming.” (Tcpt 18/25)
Mr Ragg said that people were running everywhere.
Mr Ragg was shown an Authority to Work Permit (PX 8, Tab 72). He said that the ATW permit gave the service provider and the work controller permission to give the crew the go ahead to work on a piece of equipment. He said that when a contractor entered the site, the first thing they had to do was to see a supervisor to fill out an ATW form. The ATW form at PX8, Tab 72 was the document he saw on the day of the incident.
Mr Ragg said that the work controller was in a management or supervisory role, looking after a particular job. The authorised plant controller was a shift supervisor who was running the ATW room at the time. He would authorise any plant to be isolated or de-isolated. Mr Ragg said that the authorised plant controller at the time was Mick Davis. He also said that the authorised plant controller was Paul Smith. (Tcpt 28/14-19)
Mr Ragg said that he did not have any knowledge prior to the incident of what would happen if the conveyor belt was unbalanced.
There was no cross-examination of Mr Ragg.
I formed the view that Mr Ragg was an accurate witness, except for his nomination of Mr Davis as the authorised plant controller. On the evidence, Mr Davis was the authorised work controller.

Mr Latham worked for Boral for three and a half years until June 2022. Initially he was employed as the Work Health and Safety Manager for the cement business of Boral. He has a degree in chemical engineering. Prior to working for Boral, he had worked for BlueScope Steel, eventually being promoted to being the Global OHS governance manager.
In February 2022 the Boral plant was going through a shutdown so that maintenance could be performed. There were a large number of contractors on the site during the shutdown. There was industrial action going on with the regular workforce. The job on EL13 was put on the planning schedule one to two weeks before the commencement of the shutdown.
Mr Latham said that the shutdown manager was Mick Gauci, who was normally the maintenance manager for the plant. The shutdown coordinator was Mick Davis, who was Mick Gauci’s “righthand man”. Mr Latham described a belt and bucket change for a conveyor as “a moderately risky job”. He had seen bucket changes and conveyor belt changes at many sites. On previous occasions Mr Latham had seen the buckets being removed individually. The belt was then removed from the top using a crane and when it was repaired, all of the buckets would be individually put back on the belt through an access way.
Mr Latham said in his experience, if there was a change in the process of a job, the ATW controller should be contacted. He said that also alterations should be made to the SWMS if there was a change in the process of the job (Tcpt 110/29-35).
Mr Latham said that on his understanding there was a main motor to drive the belt and a smaller drive used for inching and barring. He said that the inching and barring process is the safest way to introduce some energy to allow some movement to complete a job. On the bucket elevator there was a “brake” to stop the belt running in reverse.
Mr Latham was shown an “HSEQ Alert” dated 13 February 2022 (the day of the incident). He said that this was a Health Safety Environment Quality Alert, issued as a result of the serious incident “to communicate to everyone that something serious has occurred, and ideally you have with it some learnings to promote people to have a look at their site ‘could this happen here’, and try to prevent such an incident from happening somewhere else” (Tcpt 112/9-17).
On the first page of the document, the person to contact for more information was Dean Beltrame, the Site Manager. Mr Latham said that Mr Beltrame was “the most senior manager on site”. Normally Mr Latham would have been involved in putting this document together, but for personal reasons he was away at the time.
Mr Latham was asked to read the document and he confirmed that he did not disagree with anything in it (Tcpt 113/30).
Mr Latham said that during the shutdown period, there were engineers who worked for Boral, who were available on mobile phones – Mr Charlesworth, Mr Beltrame and Mr Gauci. Even on a weekend, if those engineers were not rostered on site, they could be contacted by Boral.
There was no cross-examination of Mr Latham.
I regard Mr Latham as an accurate truthful witness.
At this point it is noted that Mr Latham, being a Boral engineer, was not asked by the prosecutor whether Mr Davis had ever approached him at the time of the incident to ask how an overspeed of the conveyor belt could be prevented.

Mr Gauci is the holder of a mechanical engineering certificate. He commenced working for Boral at the Maldon Plant as a contract maintenance planner. He then worked at the Marulan Plant doing a similar job. He left and worked elsewhere, but then rejoined Boral as the national rail manager. He later became the maintenance manager at the New Berrima site. He took on this job in about 2019. Mr Gauci reported to Mr Beltrame who was the operations manager.
During the February 2022 shutdown at New Berrima, Mr Gauci was the shutdown manager, which involved managing and controlling the shutdown. Mr Davis held the position of project coordinator during the 2022 shutdown. This meant that Mr Davis was coordinating the various contractors to undertake works during the shutdown. He said that a shutdown is “a shutdown of a live piece of equipment to undertake maintenance activities and capital activities”.
Mr Gauci was not at the site at the time of the incident, having just driven off the site. He received a telephone call on the way home and he rang Mr Davis, who was also travelling away from the site. Mr Gauci said that during the shutdown if there was a query anyone could ask a Boral engineer a question by telephone.
Mr Gauci was asked whether, if a worker had a question about EL13 during the shutdown, they could contact an engineer. He said, “In that particular case it would have been the Beumer engineer”.
Mr Gauci was shown a “Position Profile” for the position of “Asset Planning Superintendent” (PX 8, Tab 82). He said that Mr Davis held that position. Mr Gauci said that during a shutdown it was part of the role of Mr Davis to manage contractors and to work towards improving contractor safety. He said that part of the role involved ensuring the provision of a safe working environment by ensuring adherence to the company’s occupational health, safety and environmental policies and procedures.
Mr Gauci was asked about CAD (Computer-Aided Design) drawings. He said that if CAD drawings were sent by a mobile phone, they could be shown on a large computer screen at the time of a shutdown, if necessary (Tcpt 615/10).
Mr Gauci said that Boral maintained both paper and electronic copies of maintenance and operation manuals. He recalled that EL13 had a Voith fluid coupling.
Mr Gauci was asked about Boral coordination meetings. He ran those meetings because he was the shutdown manager.
Mr Gauci recalled being told how the belt was going to be lifted back into the chute given that there was a problem with the crane, which could not lift the belt with all of the buckets high enough. He said that he was told that buckets would be put back on the belt, but the last section of the belt would be rolled up with no buckets on it, so that it could be lifted up high enough to be dropped into the chute. Mr Gauci knew that if you add an extension to a crane, that lowers the lift capacity of the crane. All of this was told to him by Mr Davis, who was the coordinator for the job (Tcpt 668/30-35).
Mr Gauci recalled that Mr Davis told him that they would have to roll the conveyor belt up, place the bucket elevator back in, then place the remainder of the buckets while the belt was in the housing of the conveyor (Tcpt 673/3-8).
In cross-examination Mr Gauci said that Mr Davis “was not a supervisor”. Mr Gauci said that between 300 and 450 contractors were on site during the shutdown in February 2022. The usual workforce at the New Berrima Plant was just under 100.
In cross-examination Mr Gauci agreed that it was Boral’s practice during the shutdown that the contractors had to complete a SWMS. He agreed that the SWMS that were completed by contractors had to be shown to the persons who were overseeing the Authority To Work permits. This was to ensure that the contractors had completed a SWMS (Tcpt 703/50-704/12).
I regard Mr Gauci as an accurate truthful witness.
At this point it is noted that Mr Gauci, being a Boral engineer, was not asked by the prosecutor whether Mr Davis had ever approached him at the time of the incident to ask how an overspeed of the conveyor belt could be prevented.

Mr Davis commenced work with Boral in May 2008 and still works for Boral. During the February 2022 shutdown, he held the position of asset and planning superintendent. This involved the following:
Organising people for the shutdown
Engaging contractors to do specific jobs during the shutdown
Raising purchase orders on those contractors
Working as a planner to help plan some of those roles and jobs on the site for the shutdown
Normally contractors would be engaged for the January shutdown in June or July of the year before. Some of the lesser risk jobs would be finalised closer to the end of the year before the shutdown. Mr Davis was involved in organising equipment and spare parts. Mr Davis was not involved in week-to-week maintenance plans, but when there were major shutdowns, larger projects or more complex projects, he would be involved.
In relation to the work to be done in EL13 during the February 2022 shutdown, Mr Davis arranged for spare parts (being the belt, the fixing materials and the belt joining) to be available to contractors. He made sure that Boral had an expert who could be paired up with the contractors doing the work on EL13.
Mr Davis was taken to a “Position Profile” for the position of asset planning superintendent (PX 8, Tab 82). Inter alia, this said that one of the duties of the asset planning superintendent was to manage contractors and work towards improving contractor safety. Mr Davis said that working towards contractor safety was “absolutely” part of his duties (Tcpt 785/33).
The document also said that one of his duties was to ensure the provision of a safe working environment by ensuring adherence to the company’s occupational, health, safety and environmental policies and procedures. Mr Davis said that this was a requirement that everyone had to comply with.
Mr Davis was asked to explain what, in his experience in industry, should be done where there was a change during a work process. He said (Tcpt 790/1-8):

In the same vein, Mr Davis said that it was not his role to inquire whether there was a new or updated risk assessment or SWMS, and that this was the responsibility of the crew doing the job.
Mr Davis was asked about the attempt to lift out the belt with all of the buckets attached, by crane, on 9 February 2022. He said that he witnessed it coming out. Mr Davis was aware that a second attempt was made after the belt was cut so that some of the belt and buckets remained inside the chute, and the portion of the belt and buckets which would clear the chute were lifted out. There was then a second lift to remove the remainder of the belt and buckets. Mr Davis said that he was aware of this change to the plan to lift out the belt and that he approved it (Tcpt 816/1-6). Mr Davis did not speak to any Boral engineer about this problem with the height of the crane. He did not tell Mr Gill that there had been a problem getting the EL13 belt and buckets out. He said, “It wasn’t sort of my role to tell Jack Gill that.”
At the suggestion of Mr Gill, Mr Davis set up a WhatsApp group so that Nepean, Fenner, Boral and Mr Gill could communicate about the job, given that Mr Gill was off site and restricted to Melbourne because of Covid protocols. Mr Davis, as part of this WhatsApp group, contributed comments and took photographs which he posted to WhatsApp. The contents of the WhatsApp group will be discussed more fully below.
Mr Davis said that in the days leading up to the start of the job there was a chat with Jack Gill (by Teams video) and Mr Gill had sent an email with some photographs of how the methodology had been used in the past on other sites, with a crane lifting the entire belt and buckets out of the chute and laying it on the ground so that the belt and some of the buckets could be replaced. This preliminary information from Mr Gill will be discussed more fully below. Besides the photographs, Mr Gill had also sent a conveyor manual and instructions in relation to the work.
Mr Davis was asked about a Nepean Job Safety Environment Analysis (JSEA) dated 9 February 2022 (PX 2, Tab 25). Mr Davis recalled reviewing this document and said to Nepean “That’s a great starting point, but I don’t like seeing generic things that are done in an office by someone. I want handwritten stuff on the job updated every day” (Tcpt 830/32). The JSEA was signed on p 10 by the Nepean work crew and by Mr Bennett. Mr Davis signed the JSEA as the “reviewer”. Mr Davis said that he wanted evidence that the document had been contributed to by everyone in the work group, and so he asked Nepean if they could do something that morning before they started the job.
Mr Davis was asked about a SWMS prepared by Nepean on a Boral template (PX 2, Tab 27). This document was handwritten and listed the steps which were to be taken to start the job on 9 February 2022. It went on in subsequent pages to list the steps which would be taken to remove the belt and buckets, install the new belt, and rotate the clamp to the top of the chute in order to join the two ends of the new belt. The document did not go past that step. The document was prepared by Mr Jansen and Mr Patterson from Nepean. Nepean workers, and Mr Bennett, signed off on the SWMS on 9 February 2022.
Mr Davis signed the document on 9 February 2022 under the following:

At this stage it is noted that the SWMS was never updated when there was a change of process, being the lift out of the belt in two pieces. It was never updated when there was another change of process, being the installation of the belt with some but not all of the buckets attached to the new belt.
Mr Davis was asked about receiving the Beumer manual before the incident on 13 February 2022 and reading it. His attention was drawn to the fact that the method for changing the belt in the Beumer manual was to remove each bucket individually, leaving a completely empty old belt, winching the new belt on with the old belt, and then replacing each of the 229 buckets one at a time. Mr Davis was asked about using this method during a shutdown in early 2023 for belt and bucket work on EL16. The method described in the manual was used for that work.
At this point I note that I regard the method set out in the manual as a “red herring” in this case (this is relevant to particular 13(a) in the Amended Summons). Beumer was informed by Mr Davis, well before the work started, that because there was a large crane on site Mr Davis proposed that the crane lift out the belt with all of the buckets attached. Beumer approved of this method, said it had been done before, and sent photographs to assist Boral and Nepean in performing the work in that manner.
Mr Davis said that he was aware of an anti-runback device for EL13, which stopped the belt running in reverse. He said that a “sprag clutch holdback” was just a different name for the anti-runback device. The presence of an anti-runback device meant that if there was free running of the bucket elevator, it would be in the forward direction only. The device would stop the belt running in the reverse direction but not the forward direction. Mr Davis said that he provided no explanation to Nepean or Mr Bennett about the anti-runback device, saying that he provided them with the manual and the expert, but was not giving them direction on the job. He was not instructing them on the steps they needed to take to do the job.
Mr Davis acknowledged that once the barring drive was used, after clamps were taken off, there was nothing to stop an unintentional start up. He said that before the barring drive was turned on, the belt had its weight balanced over each side of the head drum. He knew before the incident that there were buckets on either side of the head drum and that the buckets did not go all the way down to the bottom of the legs of the new belt. He saw this (Tcpt 866/42).
Mr Davis acknowledged that he did not undertake a risk assessment for the work to be done on EL13, either before it started, or after there had been a change in the work method for the reinstallation of the belt and buckets on the head pulley. Such a risk assessment would have been done using the Boral matrix and risk assessment template. He never saw a Nepean risk assessment for this change in process and he never asked to see one.
Mr Davis said he observed the replacement of the buckets from one belt to another. He walked past that work being done when he did his rounds three times a day. He did see that the Nepean work crew had “doubled up the tails, to make it a shorter drop”. He saw that with his own eyes when they were lifting the belt up (Tcpt 912/8-20). In the witness box Mr Davis created a drawing of the belt as he saw it being lifted (PX 35). He watched the belt with the buckets attached to the top being lifted into the elevator chute, to the point where the belt had gone inside the casing. Mr Davis said that when the doubled-up section of the belt was inside the chute, the clamps were released and the tails dropped inside the casing. He could not say whether this was because he received a phone call or that he knew it because it was part of the plan he was aware of.
Mr Davis was asked about the warning given by Mr Gill, the subject matter expert, that “it may keep turning due to imbalance of buckets”. He said (Tcpt 929/6-8):

This is the document (PX 2 Tab 27) created by Nepean on a Boral template to satisfy the requirement of Mr Davis for a proper risk assessment and a SWMS with dirt on it. The document is in handwriting. Who wrote on the document was explained by evidence given by Nepean personnel, which is referred to below. The document sets out steps in the task involved, the hazards involved, and the control measures taken to deal with the hazards. The SWMS starts with the first step of setting up the area. Step four is lifting the head roller and the belt and lowering them to the ground. At this stage it was contemplated that the entire belt and all of the buckets would be lifted out in one go by the crane. That did not happen. There is nothing written on the document to indicate that this step was ever reviewed, once the crane was unable to lift the entire belt and the work process changed.
The last step on the document is rotating the belt to the top of the chute so that the join could be done. Prior to this there was a step described as “lift head roller and belt to reinstall”. When that was written, it was assumed that the crane would be able to lift the belt and all of its buckets into the chute in one go. There is nothing on the document to indicate that the SWMS was reviewed or changed, once this important change to the work process had occurred.
The document was prepared by Mr Jansen on 9 February 2022 and Mr Patterson on 11 February 2022. It was signed off by all members of the Nepean work crew and by Mr Bennett. All of the signatures were placed on the document on 9 February 2022, indicating that while the document was created on this date before work started, there was never any revision of the document or a requirement for people to discuss or sign on to any amendment to the document. No amendment was made.
As previously recited, Mr Davis signed as the “person supervising the work”. I accept the explanation given by Mr Davis in cross-examination that he was never to physically supervise the work being done on EL13, and that this was the role taken by Mr Patterson. I am fortified in reaching that conclusion by the signature of Mr Davis appearing below the words “I have checked the Safe Work Method Statement (SWMS) and confirm that it is authorised for use”.
Against the background of the SWMS being approved, an ATW permit was issued by Mr Smith. I accept the explanation of Mr Davis that the reason he reviewed and signed the document, was that this SWMS was then authorised for use in obtaining an initial ATW permit to start work.
Once again, I note that there was never any change to the SWMS after 9 February 2022. When the time came on 13 February 2022 to lift the belt back in by a changed work process, the Codes of Practice and the Boral safety documentation required that there be a new risk assessment and a new SWMS created. This never happened. Nevertheless, an ATW permit was issued day by day for the work to continue, even though the problems with the lifting height of the crane had been apparent for some days.

Mr Davis created a WhatsApp group, so that there could be communication with Mr Gill, who was in Victoria and unable to travel to New Berrima because of Covid restrictions. The WhatsApp group consisted of Mr Davis, Mr Jansen, Mr Bennett, Mr Patterson and Mr Gill. The WhatsApp chat has been reproduced at PX 7, Tab 56. Reference to page numbers which follow are page numbers in PX 7, Tab 56. The group was given the name “EL13 belt replacement” (p 2047). The first pages of the chat concern drawings sent by Mr Gill to the group, largely concerning the clamping connection for the new belt (ie the join). Mr Gill wanted to be informed what was being done about this clamping, as a proper clamp was essential to Beumer for the purposes of providing a warranty in relation to the operation of the belt. These matters were covered in the chat between pp 2049 and 2066.
The crucial part of the WhatsApp chat, for the purposes of this case, is the exchanges which occurred on Sunday 13 February 2022, which commence at p 2066. Mr Gill said that he wanted photographs of the new belt with buckets and lifting (p 2066). Mr Davis replied that at this stage they were planning to lift in about an hour. Mr Gill said that some photos before the lift would be good for him to see any issues (p 2067). Mr Davis sent photographs of the belt lying on the ground before the lift. The photo sent at p 2067 and 2068 was not a photograph of the entire belt, but only part of the belt. The photograph appears to show buckets uniformly attached to the belt, with every visible bucket attached. The photograph does not extend to show the ends of the belt where there were no buckets.
Mr Davis sent another photograph of the lift at pp 2070 and 2071. This shows the crane above the chute, with the belt and buckets attached. The belt and buckets have been partly lowered into the chute. Thus anyone looking at that photograph would not know that on the bottom of the belt there were no buckets, but rather the ends had been clamped together in an S shape. The impression must have been given to Mr Gill by that photograph that the lift was being done in accordance with the photographs originally sent by Beumer, which required the belt with every bucket attached to be lifted back into the chute.
At 11.08am Mr Davis messaged that the elevator had been dropped into the casing and “boys are currently doing head drum and coupling up” (p 2071). At 12.21pm Mr Davis said, “The boys are just having lunch and will start on clamp shortly” (p 2072).
Mr Patterson joined in the chat at 1.15pm saying, “So we are just getting the clamp in place now”. Mr Gill asked for photographs or a video. The photograph was sent by Mr Patterson and Mr Gill understood that the photographs showed that the clamping being done was the temporary clamp being installed at the boot section of the elevator (pp 2072-2075).
There were further photographs sent of the clamping of the two ends of the belt being done at the bottom of the elevator. Mr Gill responded by providing technical information regarding the belt clamping. He asked for further pictures including a side view. Mr Gill asked for photographs of the torque wrench showing the torque applied to the bolts (an important matter for warranty purposes) and Mr Patterson sent the photographs back (pp 2076-2087).
At 3.38pm Mr Gill asked what was the next course of action for the day. Mr Davis replied that the plan was to get the join up the top this afternoon and finish for the day, then complete the works the next morning (p 2088). Upon being told this, Mr Gill said, “Be careful when stopping the bucket as it may keep turning due to imbalance of buckets” (p 2089). Mr Patterson said, “Yes we have ready to go”, Mr Gill asked, did the “drive unit have an inching/auxiliary drive” (p 2089). Mr Patterson said that it did. Mr Gill sent diagrams of the counterweight bucket sequence. It was necessary to take some of the buckets off the belt at a point opposite the clamp, so as to even the weight out (p 2090-2091). Mr Gill said that there should be seven buckets removed to balance the weight of the clamp. Mr Davis said that, “The boys will start to do the job from 6am tomorrow morning” (p 2091). Mr Gill said that he would be available from 6am on the next day (p 2093).

Mr Jansen is a mechanical engineer who was employed by Nepean at the time of the shutdown. He started working for Nepean at the beginning of February 2022. Mr Jansen and Mr Patterson went to the New Berrima site prior to the shutdown commencing and spoke to Mr Davis. Mr Davis told them that the method to be used was to lift the head roller off together with the existing belt and all of the buckets. This was to be done by a large crane which would be provided by Boral. Mr Jansen had no previous experience with bucket elevators. Mr Jansen was shown the photographs, discussed above, which had been sent by Beumer showing how the crane lift method could be done. Mr Davis told him that the belt would be laid on the road, buckets would be replaced if they were defective, and the belt and the buckets would be put back in the same way that it was removed.
Mr Jansen was shown the Nepean SWMS (PX 2, Tab 27) discussed above. He said that the handwriting on pp 434 and 435 was all his. The handwriting on subsequent pages, which is in blue ink, was not his writing. Thus Mr Jansen was the person who wrote down the first four steps, commencing with setting up the area and concluding with lifting the head roller and buckets and lowering them to the ground.
Mr Jansen signed the document on p 443 to indicate that on 9 February 2022 he was involved in preparation of the SWMS. This document came about because Mr Davis said words to the effect that he wanted to be in the crib room with Mr Jansen and Mr Patterson and the whole crew “to go through the SWMS to talk about the job before it started” (Tcpt 266/48). Mr Jansen said that he wrote out the steps on pp 434 and 435, being the goals for the first day 9 February 2022. He wrote out the steps, the hazards, the risks and the controls for the work to be performed on 9 February 2022. The whole crew were there, and Mr Davis was there when this was done. Mr Davis said that Mr Bennett was being provided by Fenner because he was a belt technician who knew about the importance of the belt splicing to be done. Mr Jansen said that the SWMS was job specific to the task, which is why the whole crew was there speaking about it and he wrote down what was decided.
Mr Jansen was not on site on 10, 11, 12 or 13 February 2022. Mr Jansen was never asked to be involved in preparing an updated SWMS to cover the task of putting the belt and buckets back into the chute in EL13.
Mr Jansen did recall signing the ATW permit on 9 February 2022. He understood that this document gave permission to Nepean to work on the site on the listed task.
Mr Jansen was present when the problem arising from the crane not being high enough arose. He was on the ground and he called to the Nepean crew to ask what was going on. He was told that the belt was too long and they could not get it out of the chute. A second lift was done and the belt came out of the chute. He called the crew and asked how this was done, and they said they had cut the belt. The lower 10 metres of the belt was secured at the head chute, then the top part of the belt was removed in the first lift, and the bottom 10 metres was removed in a second lift. The two segments were laid out on the road with the buckets facing upwards.
Mr Jansen was asked about the function of a fluid coupling. He said that electric motors are harsh when they start up as they are either on or off. A fluid coupling takes up some of that energy and dissipates it a little slower into the gearbox to prevent shock load.
Mr Jansen acknowledged in cross-examination that Mr Patterson was the supervisor of the work being done on EL13.
I regard Mr Jansen as a witness of truth, but in one regard his evidence is rejected. He did say that he thought the old belt was going to be reused when the buckets were re-attached. In this he was wrong. It was always the plan to install a new belt on the conveyor as Beumer had previously advised that the old belt needed replacing and Mr Davis had directed Nepean to install a new belt, not to reinstall the old belt. Apart from this the evidence of Mr Jansen was accurate and reliable.

Mr Felix is a boilermaker and sheet metal worker. He worked for Nepean for two years, finishing in September 2023. He was a leading hand, which he described as a senior tradesman, able to give directions to other tradesmen. He had never worked on a vertical bucket elevator before the EL13 work in February 2022.
Mr Felix was asked about the Nepean SWMS at PX 2, Tab 27. He said that the blue writing on p 436 was his handwriting. He said that these entries were made on a date later than 9 February 2022. The tasks covered on p 436 were “change buckets” and “grind buckets”.
Mr Felix was taken to the next page of the SWMS (p 438) but he said that was not his handwriting.
Mr Felix said that he was aware of the problem with the crane not being high enough to lift the belt out, because he was there. Mr Davis was involved in discussions about removing the belt by cutting it.
Mr Felix said that he never spoke to Mr Gill and he was not part of the WhatsApp chat group.
Mr Felix said that he was shown a copy of the Beumer instructions for replacement of the belt. He said that after this document was circulated and discussed, one of the fitters came to him and said words to the effect of “we’re not doing it in accordance with the instructions”. This was Mr Brad Cox. This conversation occurred at the pre-start toolbox talk. As a result Mr Felix spoke to Mr Patterson and brought up what Mr Cox had said. Mr Felix recalled Mr Patterson saying that he would go and ask Mick Davis. Later Mr Patterson came to Mr Felix and said that Mick had spoken to the engineers and they were happy with the way that it was to be done (Tcpt 371/19-21).
Mr Felix was asked about installing the buckets back onto the belt. He said that they worked out that they would lift from the centre of the belt (i.e. half way along the belt) and to make the weight even they placed an equal number of buckets onto either side of the centre. The other buckets which were not put onto the belt were still on the ground and were going to be put on later. Mr Patterson told him this. Mr Patterson also told Mr Felix that once the belt was clamped it was going to be spun around and the buckets would be put on one at a time. This was going to be done from the inspection hatch. Mr Felix said that because the crane could not go high enough some of the belt was folded up and ratchet strapped together so that it could be lifted over the chute. Once over the chute, the ratchet straps were removed and the remaining belt fell down into the chute.
Mr Felix described what happened in the incident. The auxiliary motor was de-isolated and the on button was pressed by a Boral employee. The stop button was then pressed but the belt did not stop and “started taking off on its own”. Once the buckets went over the top roller the weight took over and the belt was in free fall. There was a sound like a jet taking off and everyone yelled out “run”. He ran down the stairs before the coupling exploded. He said that there was metal hitting everywhere. After he got to the bottom of the stairs Mr Felix kept running. Once the metal stopped hitting everywhere, Mr Felix looked around and saw Mr Bennett on the ground. He assisted in putting him into the recovery position. He saw that Mr Bennett’s hard hat was cracked or split in half.
In cross-examination Mr Felix confirmed that Mr Patterson was his supervisor for the belt and bucket change out. Mr Felix was never interviewed by Mr Patterson for an investigation that Nepean conducted.
Mr Felix could not recall Mr Bennett saying to Mr Patterson that the joint had to be done at the bottom.
I accept Mr Felix as a truthful and accurate witness. In particular, I accept his evidence about his conversations with Mr Patterson about the concerns initially brought up by Mr Cox. That evidence was admitted to prove that the conversations occurred, not to prove the truth of what Mr Patterson said.

Mr Bevan started working for Nepean in July 2021 as a boilermaker doing welding, metal fabrication and site work. He had never been to the New Berrima site before the incident. On the first day he worked there the old belt was on the ground and his job was to help remove the buckets and start putting them on the new belt.
Mr Bevan recalled reading the Beumer installation instructions. He recalled Mr Brad Cox saying, “We’re not doing it to procedure”. Mr Bevan agreed that on the toolbox talk forms there was no reference to anyone raising concerns about the procedure to be adopted.
Mr Bevan recalled a concern being raised about the weight of the belt and a decision being made to only put about half the buckets back on the belt. Mr Bevan remained concerned about the planned procedure because of the effects of gravity. Once the weight took over to one side he was concerned about the belt slipping downwards. He mentioned these concerns after the toolbox talk to Mr Patterson.
After Mr Bevan raised his concerns as to what would stop the belt from running freely, he said he was told by Mr Patterson that the gearbox would hold the bucket elevator. He said that this conversation occurred as he and Mr Patterson were walking away from the toolbox talk towards the job. He said that this conversation occurred on the day of the incident 13 February 2022.
Mr Bevan recalled the Boral employees de-isolating the auxiliary motor and pressing the on button. He said the belt moved very fast. He heard a noise like a jet engine and people called out “run”. He ran and went down the stairs. Later he saw Mr Bennett lying injured on the concrete between the lift and the head chute.
Mr Bevan was involved in the recovery of the belt and buckets some days after the incident. This was done by using chain blocks. It was a long process, as the belt was pulled and pushed around so that a bucket could be inserted from time to time through the access hatch on level 3. The belt was not moved by using either motor, but was moved manually by the chain blocks.
There was no cross-examination of Mr Bevan, who I regard as an accurate witness of truth.

In February 2022 Mr Patterson was employed by Nepean as a site manager. He was managing the Nepean crew doing the EL13 work. Mr Patterson is a boilermaker, fabricator and welder. He has had training in project management. While he had worked on bucket elevators before, he had never heard of a case of a belt over-speeding or over-running.
Mr Patterson was sent photographs provided by Beumer, to show how the job could be done by lifting the belt out by a crane, with all of the buckets attached. Before the job started at New Berrima, he went to the site with Mr Jansen and met Mr Davis. Mr Patterson was aware that the Beumer way to do things, set out in the manual, was to remove all of the buckets and feed them on one at a time. Mr Davis said that using the crane to remove the belt and buckets in one piece would be quicker.
Mr Patterson was not on site on 9 February 2022 when the crane had problems lifting the belt and buckets out, but he was informed there was a problem. He said that after the lift out, the old belt was placed on the ground, the buckets were removed and about 90 per cent of the buckets were transferred onto the new belt. There was then the problem of getting the belt and the buckets back into the chute, and so buckets were removed from the bottom of both legs of the belt. This meant that there were an equal number of buckets either side of the centre of the belt, which was placed to be over the head roller.
Mr Patterson was shown the Nepean SWMS (PX 2, Tab 27) and acknowledged that there was no reference in that document to replacing the buckets and no reference to the need to keep the buckets balanced. He said that he thought that some of the writing on p 438 of the SWMS was his but he was not 100 per cent sure.
Mr Patterson had his attention drawn to the change in the process, whereby the number of buckets on the belt had to be reduced. He said that this should have been documented, but it was not.
Mr Patterson said that at one of the toolbox meetings workers expressed concerns about the imbalance of the buckets. He could not remember who brought this up. He did recall a conversation with Daniel Bevan on that topic. Mr Bevan was concerned about the balance of the buckets and wanted to know what would prevent the belt from over-rolling. Mr Patterson said that he would go and ask a question of Mick Davis and get an answer.
In relation to a conversation with Mr Davis, Mr Patterson gave the following evidence (Tcpt 463/14-21):

It is to be noted that in this version of the conversation, Mr Patterson asserted that Mr Davis volunteered that an inch brake would hold the belt. Mr Patterson gave evidence that Mr Davis did come back to him and said that the Boral engineers had said that the inch brake would hold the belt. Mr Patterson said that he went back to Mr Bevan and confirmed this to him.
Mr Patterson acknowledged that he had read the bucket elevator instructions provided by Beumer. He received these attached to an email. He said that he read some of the document but it was quite a large document and he did not read the whole thing. He was interested in how the buckets were removed and replaced, and how the belt was to be coupled together.
Mr Patterson recalled being made a participant in the WhatsApp group. He had never used WhatsApp before, but he did use it on the EL13 job to look at the matters posted on his phone.
Mr Patterson said that Mr Davis introduced him to Mr Gill, “who was going to be overlooking the way we clamped the belt together and spliced the belt”. Mr Patterson said that there was never any discussion about imbalance of the buckets, he could not recall communicating to Mr Gill how many buckets were on the belt, and he could not recall any discussion in the WhatsApp group about the number of buckets that should be removed. He was never asked by Boral to do a new risk assessment using a template.
At the time of the incident Mr Patterson was at the bottom of the belt. The belt was being inched, but then it started to run quickly. It blew open the doors at the bottom of the chute and there was dust everywhere. Mr Cox rang to say that Mr Bennett had been hit by something and needed an ambulance.
Mr Patterson said that he spoke to Mr Davis about how to get the weight down and how many buckets had to be taken off the belt. He said that the two of them calculated how many buckets had to be removed.
Mr Patterson was cross-examined about a report prepared in part by him for Nepean about the incident (PX 1, Tab 11). He accepted that nowhere in the report did he refer to relying upon anything which Mr Davis had told him about the means of holding the belt after it was inched.
In cross-examination Mr Patterson accepted that he would not regard Nepean as a company brought in to provide labour hire. He said that Nepean was engaged for specialist skills which included performing engineering and fabrication services (Tcpt 539/16-27).
Mr Patterson confirmed that he did not read all of the documents sent through by Beumer. He read the parts about how the buckets had to be tensioned back on and also about the splicing of the belt, being the bits “that I believe we needed to – to get out of there” (Tcpt 544/14-16).
Mr Patterson accepted that during the WhatsApp chat he had not informed Mr Gill about the decision that had been taken to remove some buckets from the new belt prior to its installation. Nor did he raise with Mr Gill the question of whether the brake on EL13 would hold the belt and buckets during the inching. He did not raise any concerns with Mr Gill concerning the imbalance of the belt.
I do not accept the evidence of Mr Patterson to the effect that he went to Mr Davis and asked what would stop the belt from going into free run and that Mr Davis said he would go away and ask the Boral engineers. I do not accept the evidence of Mr Patterson that Mr Davis came back to him and said that the Boral engineers had told him that an inch brake would hold the belt. My reasons are:
There was no evidence that EL13 had an inch brake, whatever that may be, which remained a mystery.
There was no consistent version of what Mr Patterson said when his workers raised their concerns:

Mr Gill is employed by Beumer as a mechanical engineer. He has a degree in chemical engineering. He has worked for Beumer Group Australia for six years. He was involved in providing subject matter expert advice for the EL13 work during the February 2022 shutdown. He prepared a report on that job dated 15 March 2022.
The report was tendered in evidence at PX 1, Tab 8. It is a “travel report” dated 15 March 2022 addressed to Boral.
Because Mr Gill was not on site, he was in part dependent on photographs given to him to understand the work which was done. Figure 1 in the report (p 98) is said to be “the complete old belt” which was lifted from the elevator casing with the drive pulley and buckets attached. Figure 1 is a photograph which could be interpreted that way, but other evidence would suggest that this is the first and longer part of the belt lifted out with the buckets attached, and that still within the elevator casing at that stage must have been the lower part of the belt which was cut so that the belt would clear the head of the chute.
Figure 4 is said to be “[n]ew belt with partial buckets and drive pulley lifted with 500 ton crane”. This is the photo sent by Mr Davis, which shows the belt partly above and partly inside the chute. Buckets are attached to the belt above the top of the chute, but one cannot tell from that photograph whether there are buckets attached all the way down the belt, where the belt is concealed within the chute.
By the time he wrote the travel report, Mr Gill had been told what actually happened in the incident. He therefore recorded that on 13 February 2022 “due to weight and height constraint, many buckets were removed to achieve the lift by the crane”.
In relation to the photograph which is Figure 4, Mr Gill said, “And this is the only picture I have of the whole lift of the job. So if you look at this picture, I cannot tell you whether the buckets was removed or not, or whether they were full buckets or partial buckets” (Tcpt 717/1-4).
Mr Gill said that he had worked with conveyor belts and fluid couplings for over 20 years. At no stage before the incident did anyone tell him that before reinstalling the belt, buckets had been removed. He gave the following evidence (Tcpt 717/43-718-15):

Mr McNeill is a mechanical engineer retained by SafeWork to provide expert reports. His first report dated 10 January 2024 is at PX 1, Tab 12. His second report dated 6 February 2024 is at PX 1, Tab 13.
The first report set out the documentation and assumed facts provided to Mr McNeill by SafeWork. Mr McNeill offered the following opinions:
A hazard existed leading to the elevator belt becoming free running, because of the imbalance of the buckets on the belt.
The PCBUs responsible for the bucket elevator should have been aware of that risk.
There were explicit warnings and guidelines provided in the Beumer bucket elevator installation instructions. The failure to establish safety guidelines provided by Beumer and the apparent oversight in managing the known risks of imbalance led to the incident.
A hazard which existed 13 February 2022 was that the hydraulic coupling could fail or crack. The coupling was designed to run at 1500 rpm but sped up to approximately 13,000 rpm, about eight times its normal operational speed. The coupling would also be subjected to non-uniform loads across the housing due to the fluid cavitating.
The PCBUs should have known about the hazard, being a potential risk arising from uncontrolled forward motion with the possibility of speed significantly exceeding the design limits.
The failure mode which explained the incident was the uneven distribution of buckets, resulting from a failure to follow the Beumer installation instructions. The extreme speed generated caused the fluid within the coupling to exert forces beyond the housing’s capacity, leading to catastrophic failure of the coupling.
The guard over the coupling at the time of the incident was neither designed nor suitably constructed to contain the parts of the coupling in the event of a catastrophic failure.
The guard over the coupling was typical for protecting personnel during operational conditions and was sufficient for those scenarios. The design of the guarding was considered industry standard for the operational risks typically associated with rotational equipment.
A risk existed of any worker at the top of the conveyor being hit by shrapnel and/or hot hydraulic fluid from the failed coupling.
The likelihood of the risk occurring under regular conditions was extremely low, but the likelihood of the event happening was extremely high when the bucket elevator was exposed to an unbalanced scenario. The degree of harm that could result from such an event was substantial, potentially leading to severe injuries or even death.
The PCBUs concerned should have reasonably known about the risk; the error was fundamental and was clearly covered in the installation documentation provided by Beumer.
During maintenance operations it was not necessary to keep the coupling connected. Uncoupling the coupling and the main drive motor from the gear box was a feasible measure to mitigate the risks associated with such extreme scenarios.
There should have been a thorough review of the SWMS and it should have been updated to accurately reflect the changes in relation to the planned procedure for lifting the new belt and buckets back into the elevator chute. Following the update, a toolbox talk with all involved personnel would have been essential to ensure that everyone was informed about the changes and understood the revised procedures.
The original SWMS lacked detail and adequate risk evaluation. The methodology did not accurately capture the actual risk associated with the tasks required to be completed, nor did it effectively mitigate them.
The risk occurred because of the failure to adhere to the installation instructions provided by Beumer and to implement a safe SWMS.

There was broad agreement between the parties as to the approach to be taken to determination of the meaning and operation of the WHS Act. Senior Counsel for Boral submitted as follows:
The health and safety duty under s 19 of the WHS Act is not an absolute duty.
The words “reasonably practicable” are ordinary words, bearing their ordinary meaning, and simply call for the making of a value judgment, in light of all the facts.
Hindsight in consideration of Element 3 may mislead and would be an incorrect approach.
The WHS Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The court must look at the facts of each case, as practical people would look at them, not with the benefit of hindsight, nor with the wisdom of Solomon, but remembering that one of the chief responsibilities of all employers is the safety of those who work for them.
The words “reasonably practicable” indicate that the duty does not require an employer to take every possible step that could be taken. An assessment needs to be made of the likelihood that harm would arise, the magnitude of the potential harm, the nature of the measures that could have been taken to eliminate or minimise the risk, and the ultimate effectiveness of remedial measures as pleaded.
Risk means the possibility of harm, and not necessarily actual harm.
SafeWork must establish that in all the circumstances Boral knew of, or that a reasonable PCBU in the position of Boral would have appreciated or foreseen, the risk pleaded in par 12 of the Amended Summons.
The issue of whether a particular measure would have addressed the general class of risk is assessed prospectively, as distinct from Element 4. It is wrong in considering whether a breach has occurred, to reason backwards from the actual incident. Such an approach may lead to a misunderstanding of the real facts on which the charge is based. A breach cannot be properly assessed without identification of the specific act or omission said to constitute the contravention.
I accept that these submissions correctly state the approach which this court must take.

Senior Counsel for Boral submitted as follows:
All of the particulars of the charge, including those in par 13 of the Amended Summons, allege that Boral itself failed to do things. A PCBU commits an offence because of its own failure, not because it is contended that it is vicariously liable for the failure of an agent.
There was no elaboration by SafeWork on why an agency arrangement existed, and thus why s 244 of the WHS Act would come into play, apart from the mere assertion of that proposition.
SafeWork contended that s 272 of the WHS Act meant that any provision of a contract that asserts that a commercial party is not an agent is void. Section 272 relates to any term of an agreement that purports to exclude, limit or modify the operation of the WHS Act or any duty owed under it. Any attempt to transfer such duty to another party is void. This was not what the contract attempted to do.
I accept all of those submissions and find that neither Nepean nor Fenner were agents of Boral, within the meaning of s 244 of the WHS Act. My reasons are:
There was no evidence that Boral assented to either Nepean or Fenner acting on its behalf, so as to affect Boral’s legal relations with third parties.
Both Nepean and Fenner were simply doing contract work on the site, as were dozens of other contractors engaged during the shutdown. They were doing an engineering job, not acting in any representative capacity for Boral, either to create contractual relations or to somehow represent Boral.
The fact that both contracts between Boral and Nepean and Boral and Fenner contained a specific clause to say that no agency relationship was created, is not determinative, but is a weighty consideration in the absence of evidence that the label is a sham.
The WHS Act does not contain a provision which deems one party to be the agent of another unlike the legislation considered in Kench v Adams, referred to above.
Nepean was a sophisticated and experienced engineering company, which provided engineering services to Boral for a specific job to be done during the shutdown. In this respect it was no different to every other contractor on site, engaged for a limited time for a specific purpose.
The same can be said of Fenner.
Neither Nepean nor Fenner had unfettered authority to do the work as they saw fit. Both the overarching Boral safety documents, and the contracts entered into between the parties, said that Nepean and Fenner were subject to reasonable directions given by Boral.

I make the following findings of fact for this period:
Nepean was engaged by a contract with Boral Construction Materials Limited dated 25 November 2021 to provide engineering and fabrication services to the Boral Group.
In November 2021 emails were exchanged between Mr Patterson and Mr Davis concerning Nepean being engaged to assist Boral with the February 2022 shutdown.
In early February 2022 Mr Patterson provided Mr Davis with the names, phone numbers and email addresses of himself and eight other Nepean employees with a view to arranging for Boral inductions.
On 1 February 2022 technicians from Beumer attended the New Berrima site to inspect four bucket elevators.
As a result of those inspections Beumer recommended replacing the belt on EL13.
Mr Davis contacted Beumer and raised the prospect of using a crane to lift out the belt with the buckets attached, having a new belt with buckets pre-assembled on the ground, and then lifting the new belt with all buckets attached back using the crane.
Mr Davis was informed by Beumer that this was a method which had been used successfully in the past. Photographs and instructions were provided as to how the crane lift process should be done.
On 4 February 2022 Mr Davis contacted Mr Patterson to discuss the potential engagement of Nepean to undertake the work on EL13.
Boral engaged about 30 different contracting companies to assist in the February 2022 shutdown, involving between 300 and 450 contract workers being engaged.
During the February 2022 shutdown, Mr Davis undertook the role of Shutdown Coordinator.
Mr Davis was not required to directly manage or supervise the work being undertaken by contractors.
Mr Davis was required to engage with contractors to ensure that they were able to undertake their work safely.
On 4 February 2022 Mr Davis met with Mr Patterson and Mr Jansen from Nepean at the New Berrima site. Mr Davis showed them the location of EL13 and discussed available methods for undertaking the job.
Mr Davis informed Mr Patterson and Mr Jansen that because large cranes were to be on site, the work was to be done by lifting out the old belt with all buckets attached and then lifting the new belt with all buckets attached back into the elevator chute.
Nepean agreed to undertake the EL13 work using the crane lift method.
Boral engaged WGC to do a lift study and to bring cranes to the site to do, inter alia, work on EL13.
On 5 February 2022 Mr Davis emailed Beumer and asked for detailed instructions on how to complete the belt change and how to join the two ends of the new belt.
On 7 February 2022 Beumer provided pictures to show the replacement of a belt, with buckets attached, using a crane.
On 7 February 2022 Beumer offered to arrange for its engineer Mr Jack Gill to provide remote supervision and assistance for the installation of a new belt.
On 7 February 2022 Nepean arranged for a work crew to undertake a Boral induction to do the EL13 work.
On 7 February 2022 Mr Davis sent to Mr Patterson instructions from Beumer in relation to the elevator belt change. Included with this material was the photographs showing a crane lifting the belt in and out.
On 8 February 2022 Boral issued a Purchase Order to Nepean in relation to the work of replacing the belt on EL13.

Mr Davis reviewed that SWMS to satisfy himself that the Nepean work crew had undertaken an appropriate risk assessment of the work to be performed.
Mr Davis signed the Nepean SWMS on 9 February 2022 to confirm that it was authorised for use and that Nepean could start work in accordance with the SWMS.
An ATW Permit for Nepean was prepared for the EL13 work.
Mr Davis, having undertaken a review of the documentation required for the provision of the ATW, signed the Nepean ATW as the Authorised Work Controller.
After the ATW was issued, Nepean and WGC were permitted to commence their EL13 work.
The Nepean work crew removed the casing over the head drum.
The WGC crane crew used the crane to lift the casing down to the ground.
The Nepean work crew undertook steps to disconnect the head drum.
The WGC crew rigged the head drum and belt to the crane hook via soft slings.
While the head drum and belt were secured at the top, the Nepean work crew went to the bottom of the chute and cut the old belt.
The WGC crane operator proceeded to operate the crane to attempt to lift the head drum, old belt and buckets out of the casing.
Mr Davis was watching the crane lift from the Boral office block about 80 metres away.
The crane was unable to lift the old belt with all of the buckets on it, because the crane did not have sufficient reach to get the two tail ends of the belt out of the casing.
About three-quarters of the way through the lift, the crane operator called Mr Davis to alert him to the problem.
A decision was made to lower the belt back into position and reassess what next steps should be taken.
Mr Jansen from Nepean and Mr Bennett from Fenner discussed the options.
The alternate methodology involved another clamping arrangement being installed to the top of the elevator casing, and the Nepean crew cutting the belt again, so that the top section with the buckets attached could be lifted out and clear the top of the chute.
Mr Davis was informed of the planned change in methodology by the Nepean work crew and gave them permission to proceed with the alternate methodology.
The two sections of the old belt and the head drum were successfully lifted from EL13 and placed on a section of roadway adjacent to the EL13 tower.

I make the following findings of fact:
The lift of the new belt with 114 buckets and the head drum took place at around 11am.
Mr Davis observed the WGC crane lift the new belt with buckets and the head drum from the ground, when he was a distance away from EL13.
Mr Davis became aware that the Nepean work crew had removed buckets from the tail ends of the new belt, prior to the new belt being lifted in by the crane.
Mr Davis saw the belt still lying on the ground, and the tails of the belt did not have buckets on them (Tcpt 913/1-13).
Mr Davis saw that the Nepean work crew had folded the tail sections of the new belt, with no buckets, into an S shape. He saw this as the new belt was being lifted by the crane.
Mr Davis took a photograph of the belt being lifted into place by the crane at 11.08am. The photograph showed the new belt above the top of EL13, with buckets attached, but did not show those parts of the new belt where the buckets had been removed. By the time the photo was taken, the tails of the belt (with no buckets) had been unstrapped and had dropped into the chute.
Mr Davis sent this photograph to Mr Gill with a message, “Elevator has been dropped into casing and boys are currently doing head drum and coupling up”.
At around 1.15pm the Nepean work crew and Mr Bennett were involved in clamping the two ends of the new belt at the boot section of EL13. This was to be a temporary join. Mr Patterson sent photographs of this process to Mr Gill.
At 3.40pm Mr Davis informed Mr Gill via WhatsApp that the plan was to move the joint of the two ends of the belt from the bottom to the top of the head drum and finish the job for the day.
At 3.42pm Mr Gill sent a message on WhatsApp saying, “Be careful when stopping the bucket [sic: belt] as it may keep turning due to imbalance of buckets”.
At 3.42pm Mr Patterson responded to Mr Gill saying, “Yes we have [sic] ready to go”.
Mr Patterson did not ask Mr Davis what would prevent the belt from over rolling and going into free fall.
Mr Davis did not say to Mr Patterson that he would go to his engineers and find an answer.
Mr Davis did not come back to Mr Patterson and say that the engineers were happy that an inch brake would hold the belt once it was rotated.
No Boral engineer gave evidence that they had ever been asked by Mr Davis what would stop the belt from over rolling once the auxiliary motor was turned on and the belt was rotating.
Mr Ragg de-isolated the energy for EL13 and was directed by the Nepean work crew to start the auxiliary motor on EL13.
The ascending side of the belt started to move over the head pulley and down the descending side of the belt.
The mass on the descending side then exceeded the mass on the ascending side and through gravity the belt started free running out of control. The descending side of the belt rapidly moved over the head pulley and plunged to the bottom of EL13.
The energy in the fast rotating head pulley fed back into the gearbox turning it at a rapid speed.
In turn this rotated the fluid coupling at a speed many times more than its designated safe operating limit.
The fluid coupling exploded, sending shrapnel in the direction of the workers who were attempting to escape from Level 7.
Mr Bennett was struck by the exploding metal and suffered serious injuries.

I make the following findings of fact in relation to what Boral knew of the risk:
There is no evidence that Mr Davis or anyone else from Boral turned their mind to, or recognised, the existence of the risk. I have indicated above my acceptance of the Boral submission that Mr Davis did not personally perceive or recognise the potential risk. However, both he and Boral should have, for reasons set out immediately below.
In relation to what Boral ought reasonably to have known I make the following findings of fact:
Mr Davis knew that the crane was lifting the belt back into the chute, with the two sides of the belt evenly draped over the head roller, and buckets attached to the top part of the belt near the head roller but with no buckets on the tails of the belt.
Mr Davis saw this happening. So did Mr Smith.
Mr Davis, having seen this, took a photograph, but at a point where the belt had been partly lowered into the chute.
Mr Davis observed that the buckets were not spaced evenly on the belt
Mr Davis knew, or ought reasonably to have known, from reading the Beumer manual sent to him, that the buckets had to be spaced evenly on the belt.
Mr Davis also knew this, or ought reasonably to have known this, from the warning being reiterated by Mr Gill during the WhatsApp group chat.
Mr Davis gave no evidence that he gave any thought to whether there was any means of safely rotating the belt with an uneven balance of buckets on the belt.
Mr Davis knew that the barring drive was going to be turned on, because he discussed that with Mr Patterson, and arranged for Mr Ragg and Mr Burgess to obtain the means of de-isolating the auxiliary motor with a view to turning it on and thus rotating the belt.
Boral ought reasonably to have known of ways of eliminating or minimising the risk, by having buckets evenly spaced on the belt before the barring drive was turned on. Had Boral followed its own written safety procedures, the Regulation, the Codes of Practice, or what employees other than Mr Davis said, the changed work process should have resulted in work stopping, a risk assessment being conducted and a new SWMS being created to perform the work on EL13 safely.
This would not have been a complicated process. All Boral, and indeed Nepean, had to do was to tell Mr Gill, the subject matter expert, that the plan was to rotate the join on the belt from the bottom of the chute to the top, with all of the buckets on one side of the belt but not the other. No doubt he would have been horrified. The PCBUs could then have asked Mr Gill how to perform this operation without risk.
Boral could then have told Nepean to create a new SWMS to take this change in work process into account. Boral could then have reviewed the new SWMS.

In his evidence Mr Davis said many times that once he reviewed the initial SWMS on 9 February 2022, for the purpose of Nepean obtaining an ATW permit, it was thereafter the job of Nepean, without oversight by Boral, to conduct a risk assessment and update a SWMS if the work process changed so as to give rise to a new safety hazard.
It must be recognised that in this case Boral engaged two specialist contractors. Mr Gill from Beumer was engaged to provide expert supervision of the entire process conducted in relation to EL13. Beumer was the OEM and Mr Gill was the subject matter expert. I accept that Boral did not have the expertise to safely manage the EL13 work. It was prudent of Boral to engage Mr Gill to provide such expertise. There is no criticism made in this case of the guidance and advice provided by Mr Gill.
Nepean was engaged as a specialist engineering contractor to perform the work on EL13. Nepean was provided with the Beumer documentation, which contained a plain warning that the belt should not be reinstalled with the buckets out of balance. This was reiterated to Nepean and to Mr Davis, by Mr Gill making such a statement in the WhatsApp group chat. Those matters have been set out in detail above.
A common theme of the evidence of Mr Davis was that once he set Nepean on its course by approving the initial version of the SWMS, he had no further responsibility to check that the work was being done safely, as that was entirely the responsibility of Nepean. Part of the gist of his evidence was that it was the sole responsibility of Nepean to recognise risks and safety concerns arising from any changed work process, and to take steps accordingly to control such risks and hazards.
The principles concerning whether a party with a health and safety duty can leave it to someone else to carry out that duty are set out above. The question of control over the contractor is relevant to the determination of what is reasonably practicable. Section 16(3)(b) of the WHS Act requires the court to consider “the extent to which the person has the capacity to influence and control the matter”.
On the facts in this case, Boral had a significant degree of control over how Nepean carried out the work. That is not to say that Boral had to stand over Nepean’s shoulder and watch everything that it did. However, the contract by which Boral engaged Nepean, and the Boral safety documentation, both said that the contractor (Nepean) had to follow the documented Boral safety procedures and any reasonable directions from Boral.
I accept that Mr Davis had a very busy and onerous job during the shutdown. He had to monitor the activities of dozens of independent contractors who were performing disparate tasks across a large industrial site. He could not be everywhere at once and he could not attend every toolbox talk. Nor could he stand by and watch every second of work done by a contractor. However, his evidence was that he had an overview of the work being done. His participation in the WhatsApp group from time to time showed that he was monitoring the EL13 work, not only by looking at it from time to time on his walk-around, but also by talking to Mr Patterson.
I find that the notion that once Nepean started its work, it should be left to be entirely responsible for safety issues and the management of risks, is misconceived. I find that Boral continued to have a duty under the WHS Act to do what was reasonably practicable to ensure safety. Boral did not necessarily have to form its own judgment as to whether the new belt with the unbalanced buckets posed a hazard. All it had to do was follow its own documented processes, what was in the Codes of Practice and cl 38 of the Regulation, and which was known to several Boral employees who gave evidence – if there was a change in the work process, work had to stop, a risk assessment had to be performed and a new SWMS created if that was necessary.
If Boral had asked for this to happen, then the result would have been that Mr Gill would have been fully informed about the state of the belt and the buckets, and he would have given advice, no doubt strong advice, that the work should not be done that way. Mr Gill would then have devised a safe system for performing the work and advised Boral accordingly.
That is not to say that Nepean did not have significant duties under the WHS Act. It did. It too should have followed the Boral safety procedures, as it was obliged to do by its contract.
These findings are relevant not only to Element 3, but feed into Element 4 which is discussed below.

SafeWork NSW v Boral Cement Limited (No. 2)

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

JUDGMENT

Introduction

The Task of this Court

The Amended Summons

The Risk

Failure to exercise due diligence

Exposure to a risk of death or serious injury

The Elements of the Offence Charged

The relevant law

General Principles

Work Health and Safety Regulation 2017

Agency and Section 244 of the Work Health and Safety Act

Reliance upon a Specialist Contractor

Legal Issues to be Determined

The Boral Group of Companies

The Boral Cement Facility

What happened in the Incident

Involvement of Nepean

Mr Patterson Seeks Work for Nepean from Mr Davis

Boral Procurement Agreement with Nepean

Boral Purchase Order

Nepean Employees

Involvement of Fenner

Involvement of Beumer

Boral Safety Documents

Risk Management

Communication and Consultation

Safe Systems of Work

Codes of Practice

Code of Practice: How to manage work health and safety risks August 2019

Code of Practice: Managing the risks of plant in the workplace August 2019

Code of Practice: Work Health and Safety Consultation, Cooperation and Coordination August 2019

Other Safety Publications and Literature

Evidence given by Boral Personnel

Roger Ragg

The ATW Permit

Daniel Burgess

Paul Smith

Bruce Latham

HSEQ Alert

Jonathan Charlesworth

Girish Yadwad

Michael Gauci

Dean Beltrame

Michael Davis

Documents Leading up to the Commencement of the EL13 Work

Beumer Advice Regarding Lifting by a Crane

Nepean JSEA Dated 9 February 2022

Nepean SWMS dated 9 February 2022

The WhatsApp chat

Beumer Instructions Regarding Mounting the Buckets

Evidence given by Nepean Personnel

Christopher Jansen

Bryan Felix

Daniel Bevan

Brendan Slater

Martyn Patterson

Evidence given by Fenner Personnel

Stuart Milliken

Cameron Clarke

Douglas Bennett

Evidence given by Beumer personnel

Jack Gill

Evidence given by WGC Cranes Personnel

Matthew Walker

Adam Hazzard

Peter Videvski

Evidence given by SafeWork Inspectors

Expert evidence given by Mr McNeill

Submissions