SafeWork NSW v Rockfield Contracting Pty Ltd

Introduction

1. The defendant Rockfield Contracting Pty Ltd pleaded not guilty to a charge that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health & Safety Act 2011 (NSW) ("the Act") to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed Paul Walsh to a risk of death or serious injury contrary to s 32 of the Act.
2. On 1 April 2016 at Station Street in Katoomba the defendant was conducting its business or undertaking involving the provision of horizontal directional drilling services. Mr Walsh was an employee of the defendant and was tracking a drill head during horizontal directional drilling operations. Mr Walsh suffered fatal injuries as a result of being struck by moving parts of a drill during the course of the drill being manoeuvred out of an exit pit so that the drill head could be removed from the drill string.
3. The issues to be determined are: 1. Did the defendant owe the workers a health and safety duty under s 19(1) of the Act? 2. Did the defendant fail to comply with its health and safety duty by failing to take any of the steps particularised in par 8 of the Summons? 3. Did the defendant's breach of duty expose the workers to a risk of death or serious injury?

The Task of this Court

1. 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 or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
2. 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.
3. 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 any 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.
4. I must determine whether each of the witnesses is a reliable witness i.e. 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.
5. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

A Full Transcript Was Not Available

1. A transcript of the hearing was requested by the court and ordered by both sides. The court was advised by email by the Reporting Services Branch of the Department of Communities and Justice that a transcript could not be provided due to "a high volume of daily transcript requests for sexual assault and lengthy trials". It is unfortunate that a transcript was not possible for a judge alone trial such as this, which involved a death and where the defendant, if convicted, faced a maximum fine of $1,500,000. A request was made during the trial for a transcript of the evidence of a key witness, Mr Caulfield, and this was provided. It proved to be of great assistance.
2. While I have some confidence in the accuracy of my notes of the evidence of the lay witnesses, it was very difficult to make a complete note of the evidence of the three experts who gave joint oral evidence, often of a technical nature. It was also difficult to do justice in handwritten notes to the detailed and thoughtful final submissions of both counsel.
3. In the absence of a transcript for the rest of the hearing, this judgment has been prepared based upon my handwritten notes of the oral evidence and the submissions. As always, this court does its best with the resources provided to it.

The Elements of the Offence

1. Section 32 of the Act provides: "A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness."
2. The elements of the offence are: Element 1 The defendant owed the workers a duty under s 19(1) of the Act. Element 2 The defendant failed to comply with that duty. Element 3 The failure exposed the workers to a risk of death or serious injury.

The Summons

1. The Summons filed on 7 March 2018 particularises the date of the offence as 1 April 2016 and the place of the offence as Station Street, Katoomba in New South Wales.
2. Paragraphs 1-6 of the Summons set out the background facts which the prosecutor seeks to prove. All of those facts have been established by the evidence, which is examined in detail below. Paragraphs 1-6 of the Summons are as follows: "1. The defendant, Rockfield Contracting Pty Limited, being a corporation, was a person conducting a business or undertaking within the meaning of the Act. 2. The defendant was subcontracted to Visionstream Pty Ltd (ACN 062 604 193) (Visionstream) as part of the NBN Fibre Network Project. 3. The defendant's business or undertaking involved the provision of excavation and horizontal directional drilling services. 4. The defendant conducted its business or undertaking from a workplace situated at Station Street, Katoomba, New South Wales (Site). 5. The defendant, as part of its business or undertaking: (a) was involved in conducting horizontal directional drilling and excavation works for the provision of pipe laying and cabling services; (b) supplied and provided the overall work health and safety management system to its workers it engaged as part of its business and undertaking; (c) was responsible for overseeing the activities of its operation and its workers in the workplace; (d) was responsible in ensuring the conducting of hazard identification and risk assessments for its activities in the workplace; (e) was responsible in ensuring the communication of hazard identification and risk assessments to relevant workers in the workplace; (f) was responsible for ensuring that each of its workers was aware and fully complied with the safety management system; (g) provided a Vermeer, Model Number DX36X50 Series 11 Navigator Horizontal Directional Drill, VIN Number 1VR4230D9E1002203 (horizontal directional drill) for use by workers; and (h) engaged Paul Walsh as a worker and directed and influenced Paul Walsh in his activities in carrying out work. 6. On 1 April 2016 Paul Walsh was undertaking work at the Site and was tracking a drill head during horizontal directional drilling operations at the workplace."

The Risk

1. Paragraph 7 of the Summons pleads the risk as follows: "Particulars of the risk: 7. The risk was the risk of workers, in particular Paul Walsh, sustaining serious or fatal injuries as a result of either being struck and/or crushed by a moving drill string and/or drill head whilst the drill was being pulled back during horizontal directional drilling operations (Risk)."

Reasonably Practicable Measures

1. Paragraph 8 of the Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "8. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Paul Walsh, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or, alternatively, minimise if it was not reasonably practicable to eliminate) the risks to health and safety to workers by: (a) providing and maintaining a system of work which ensured that: i. there was an exclusion zone in place around all parts of the operational horizontal directional drill including the drill head and drill string to ensure no person could come into contact with moving parts of the drill whilst it was operation; and/or ii. fencing was in place around the exit pit so as to prevent anyone from being near the drill string and drill head of the horizontal drill at any time whilst it was operating; and/or iii. workers could not enter the work area where horizontal directional drilling was being conducted unless they were in full view of the horizontal directional drill operator or unless they could be seen by a spotter; and/or iv. personal protective equipment including a helmet was worn by persons working in the vicinity of horizontal directional drilling operations; and/or v. the removal of the drill head was undertaken within the exit pit to remove the requirement for the drill head and drill string to be brought outside the exit pit. (b) developing, implementing and enforcing a work health and safety system that prohibited the operation of the horizontal directional drill when the drill tracker was in close proximity to the exit pit excavation or which prohibited workers entering the danger zone of operating plant and machinery during horizontal directional drilling; (c) providing clear instructions to all employees as to what steps should be undertaken, notably the cessation of all horizontal drilling operations if people come within close proximity of the drill head while in operation; (d) ensuring that the task of removing the drill head from the drill string was undertaken in line with the plant manufacturer's instructions."
2. Paragraphs 9 and 10 of the Summons plead that as a result of the defendant's failures, Mr Paul Walsh was exposed to a risk of death or serious injury and his death was a manifestation of the risk.

General Principles

1. The objects clause in s 3 of the Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by: (a) 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, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable."
2. The offence is one of strict liability: s 12A of the Act.
3. The content of the duty is set out in s 19 of the Act which provides: "(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
4. The meaning of "worker" is dealt with by s 7(1) of the Act which provides: "A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) …"
5. Section 16 of the Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person: (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity."
6. Section 17 of the Act deals with the management of risks and provides: "A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable."
7. The word "risk" is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury - s 32(c).
8. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.
9. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
10. "Reasonably practicable" is defined in s 18 of the Act which provides: "In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including: (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows, or ought reasonably to know, about; (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
11. 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].
12. 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 (Slivak) at [37] per Gleeson CJ, Gummow and Hayne JJ.
13. 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].
14. 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.
15. 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.
16. 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.
17. 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.
18. 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].
19. 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.
20. 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 Underground at [130].
21. Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 of the Act provides: "Imputing Conduct to Bodies Corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate."

Additional Legal Submissions

1. The general principles set out above were accepted by both counsel. The defendant raised two additional legal matters.
2. Firstly, counsel submitted that because the primary duty under s 17 of the Act was to eliminate risk, the secondary duty to minimise risk only came into play if it was not possible to eliminate the risk. Counsel submitted that the prosecutor had identified a way to eliminate the risk, which was extending the exit trench and taking the drill out through an extended trench. The failure to do this was not a particular of the Summons and was not part of the charge against the defendant. Counsel submitted that it is only where it is not reasonably practicable to eliminate a risk that a defendant is permitted to minimise a risk so far as is reasonably practicable. Counsel acknowledged that this was a submission made to me by senior counsel for the defendant in SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd (No. 2) [2020] NSWDC 668 at [41]-[47].
3. In that earlier decision I rejected the submission, for reasons set out in pars [51]-[54] of that earlier judgment. I adopt those reasons in again rejecting the submission.
4. There is an additional reason for rejection of the submission.
5. Digging or extending an exit trench so that the drill head and drill string could be taken straight out, does not eliminate the risk, as a fact. It is not an engineering solution which entirely removes the risk. There would still need to be administrative controls, including at the very least the use of lockout procedure before anyone approaches the drill head and the drill string. There would also need to be the administrative control of an appropriate exclusion zone around the drill head and drill string, while it is moving into the extended trench and before any worker approaches the machinery.
6. That first legal submission is therefore rejected.
7. The second submission of law in relation to the charge depended upon examination of the correspondence between the parties relating to particulars provided by the prosecutor. A folder of the correspondence was tendered as Exhibit DX 5.
8. In a letter from the solicitor for the defendant to the solicitors for the prosecutor dated 15 April 2020, the solicitor for the defendant set out the defendant's understanding of the prosecution case. Under the heading "Risk", par 3 said: "The existence of the risk is limited to excavation points where the drill head and drill string are exposed, where the drill head and drill string enter the ground, at points where observation holes had been created; and where the drill head and drill string exit the ground (the excavation pit)."
9. In a letter dated 29 April 2020, the solicitor for the prosecutor responded to par 3 as follows: "As a consequence, referring specifically to paragraph numbered 3 in your letter dated 15 April 2020, we are of the view that it would be preferable to refer to 'proximity' (as opposed to 'the existence') to the subject risk in the following terms: 'Proximity to the risk is limited to the excavation points where: (i) the drill head and/or drill string enters the ground; and/or (ii) at the exit pit whilst the drill string and/or drill head have exited from the ground and into the pit and is exposed.'"
10. Counsel for the defendant submitted that this response limited the proximity to the risk, as there only being a risk while the drill head and drill string were in the exit pit itself.
11. Counsel for the prosecutor submitted that the trial had been conducted on the basis that the risk included all events after the drill head emerged from the southern face of the excavation pit and the evidence had not been limited to the time when the drill head and string were in the pit itself. Counsel submitted that the defendant did not have the understanding that the case was limited to events which occurred within the pit. Counsel pointed out that the defendant had chosen not to raise the issue at any early stage and not to object to evidence concerning the events after the drill head was pushed into the northern face of the exit pit, drilled through the ground and emerged to the north of the pit. Further, the defendant had commissioned a report from an expert on the basis that events after the drill head passed through the excavation pit were fundamental to the charge faced by the defendant. Counsel for the prosecutor submitted that the defendant had had a fair trial and had been able to fully meet the case brought by the prosecution.
12. I accept those submissions. It is instructive to note that par 3 of the letter dated 15 April 2020 from the solicitors for the defendant did not seek to limit the "existence of the risk" to the exit pit itself. That letter nominated several points or places where the risk existed, including "where the drill head and drill string exit the ground". This phrase was undoubtedly meant to include the drill head and drill string breaking through the bitumen footpath, being pushed too far forward and then being withdrawn back to the south.
13. While par 3 in the letter dated 29 April 2020 could be read in the restricted sense put forward during submissions by counsel for the defendant, it was obviously not understood by the defendant to impose any particular restriction upon the way in which the prosecution could run its case.
14. I therefore reject the submission made by counsel for the defendant that the charge is limited to a risk which arose only in the exit pit, and not when the drill head and drill string were pushed and drilled through the ground north of the exit pit. The case has been run from day one on the basis that the risk was one created by stored energy being imposed upon the drill head and drill string, when they were pushed and drilled through the ground north of the exit pit.

Admissions made by the Defendant

1. The defendant made the following formal admissions (PX 4): 1. The defendant had a health and safety duty - s 32(a) of the Act. 2. The defendant was a person conducting a business or undertaking - s 19(1) of the Act. 3. Workers were engaged by the defendant - s 19(1) of the Act. 4. Workers' activities in carrying out work were influenced or directed by the defendant while the workers were at work in the business or undertaking - s 19(1) of the Act.

Concession made by the Prosecutor

1. The prosecutor formally conceded that there was a comprehensive documented work health and safety system used by the defendant, in the form of the Visionstream Pty Ltd (ACN 062 604 193) ("Visionstream") management system and the documents in it including the defendant's Health and Safety Management Plan For Contractors (PX 2, Tab 26), the Visionstream Risk Assessment (PX 2, Tab 31), the defendant's Plant Hazard Assessment (PX 2, Tab 15) and the defendant's SWMSs (PX 2, Tabs 13 and 14).

Agreed Statement of Facts

1. A large number of factual matters were agreed between the parties. These were set out in an Agreed Statement of Facts (PX 3) and are recited below.

Authority to bring Proceedings

1. SafeWork NSW being the regulator as defined by s 4 of the Act, is empowered under s 230(1)(a) of the Act to institute proceedings in this matter.

Background

1. At all material times the defendant was a registered corporation with its registered address located at Suite 1, 209-211 Windsor Street, Richmond, New South Wales 2753.
2. At all material times, the primary business of the defendant was civil construction and excavation.
3. On 1 April 2016 the defendant employed approximately 14 workers.
4. At all material times Mr Mathew Lambe was the Director of the defendant.
5. At all material times Visionstream was a registered corporation with its registered address located at Level 16, Tower B, 799 Pacific Highway, Chatswood, New South Wales 2067.
6. At all material times Visionstream was subcontracted to NBN Co Limited ("NBN") as part of the NBN Fibre Network Project as the principal contractor for the project.
7. At all material times Visionstream engaged the services of the defendant as a subcontractor to carry out work as part of the NBN Fibre Network Project which included: 1. Excavation and installation of pits and pipes. 2. Horizontal boring. 3. Rod rope and hauling. 4. Ploughing cable. 5. Waste disposal pump outs.
8. On or about 1 April 2008, Mr Walsh commenced employment with the defendant. Mr Walsh reported to Mr Lambe and Mr Noel Lynch the General Manager.
9. As at 1 April 2016, Mr Walsh had worked for the defendant for approximately eight years.
10. On 1 April 2016, Mr Walsh was performing the role of the defendant's head drill tracker and crew supervisor.
11. On 27 June 2003, Mr Michael Caulfield commenced employment with the defendant as a directional drill operator.
12. On 1 April 2016, the defendant was conducting its business or undertaking and engaged the workers to carry out work at Station Street, Katoomba, New South Wales as part of the NBN Fibre Network Project.
13. On 1 April 2016, the following workers were undertaking work for the defendant, in the following capacities, to perform work at the workplace: 1. Mr Paul Walsh - Head Drill Tracker and Crew Supervisor. 2. Mr Padraig Luddy - Sole Trader - Excavator Operator. 3. Mr Jason Lennon - Labourer/ Drill Operator. 4. Mr Michael Caulfield - Directional Drill Operator.
14. D & D Traffic Management Pty Ltd (ACN 105 286 146) ("D & D"), undertook traffic control activities in and around the workplace on 1 April 2016. D & D caused the following workers to work at the workplace; 1. Ms Donna Marie Pearson - Traffic Controller. 2. Mr Thomas Dennis Kelly - Traffic Controller. 3. Mr Brian Sloan - Team Leader.

The Workplace

1. The workplace was located at Station Street, Katoomba, New South Wales NSW 2780. Workers were undertaking the task of horizontal directional drilling for the NBN beneath the public footpath located between 1 Station Street and 7 Station Street.
2. An excavated pit, identified as the entry pit, was located towards the southern end of Station Street. The entry pit was 1500mm long x 600mm wide.
3. An excavated exit pit had been dug into the footpath and was located approximately 40 metres north from the entry pit.

The Incident

1. On 1 April 2016 at approximately 1.30pm, Mr Walsh sustained injury, including fatal head injuries.
2. Mr Walsh sustained injury as a consequence of being struck by an unidentified part of the drill head and/or drill string.

The Plant and Equipment - Horizontal Directional Drill

1. At all material times a Vermeer Horizontal Directional Drill Model Number D36X50 Series II Navigator Horizontal Directional Drill, VIN Number 1VR4230D9E1002203 ("Vermeer directional drill") was provided for use and was located at the workplace.
2. The Vermeer directional drill was owned by the defendant and the defendant was responsible for maintaining and arranging servicing of the directional drill.
3. The drive section of the drilling rig comprised a diesel engine, a hydraulic power pack, a slide mounted drive unit and a drill rod fastening and unfastening unit.
4. On the left hand side of the drilling rig was a cartridge loaded with metal drill rods. Each rod was 3,000mm long and 70mm in diameter. The cartridge allowed for drill rods to be automatically fed as required. The rods were fastened together to form a "string" of drill rods or a "drill string".
5. The slide mounted drive unit provided both rotational power (clockwise and counter-clockwise) and travel power (forward and reverse) to the drill string.
6. At the end of the drill string there was a drill head. The drill head comprised of a series of tungsten carbide teeth for boring through ground soil and rock.

Background to the Incident

1. Work commenced at Station Street, Katoomba on 18 March 2016. The defendant's workers were provided with a job pack for the work to be undertaken at Katoomba by Mr Lynch. The job pack was kept at the site.
2. On 1 April 2016, work commenced at the Station Street, Katoomba work site at approximately 7.00am.
3. The workers had a pre-start meeting on the day, where a START CARD was filled out.
4. A toolbox talk was held on the day and it was documented.
5. On the day of the incident, Mr Luddy had dug backfill out of the exit hole with an excavator. It had been excavated previously and was covered over at the end of the previous shift.
6. On 1 April 2016, at approximately 1.30pm, Mr Caulfield was operating the Vermeer directional drill to drill north approximately 40 metres in length at a depth of approximately one metre below the ground surface.
7. Mr Walsh was tracking the head of the drill, with a digi-tracker device, to assist Mr Caulfield to navigate the drill head from the entry pit, through the ground, around underground assets and services, up to the exit pit and to guide it into the exit pit.
8. There was no fence around the exit pit at the time of the incident.
9. Immediately prior to the incident Mr Caulfield was communicating with Mr Walsh via UHF radio communications. Mr Walsh and Mr Caulfield were in the process of getting the Vermeer directional drill head into position to take the drill head off near the exit pit.
10. Mr Walsh asked Mr Caulfield to pull back the drill head and drill string (towards the exit pit).
11. On 1 April 2016, at approximately 1.30pm, Mr Lennon was approximately 30 metres away up the path from the exit pit, and was waiting for the drill operation to finish.
12. Mr Caulfield was operating the drill approximately 37 metres away from the exit pit. Mr Caulfield was talking to Mr Walsh and Mr Walsh was asking Mr Caulfield over the radio to "pull back more, more, more" and then Mr Caulfield heard nothing.
13. The drill head and drill string moved towards Mr Walsh. When the drill rod moved, either the drill string and/or the drill head impacted against Mr Walsh's head.
14. Mr Caulfield got off the drill rig and approached the exit pit location.
15. Ms Pearson ran to Mr Walsh, who had collapsed, observed his head injuries and instructed Mr Sloan to call an ambulance. Ms Pearson then attempted to provide first aid and assistance for a period of time.
16. Mr Sloan ran across to the pit and observed Mr Walsh bleeding badly and called "000" on his mobile phone for emergency assistance. Mr Sloan spoke to "000" and later instructed Mr Kelly to undertake traffic control at the top of the road.
17. Ambulance paramedics Hardy and Watson attended the scene and immediately attended to Mr Walsh. An ambulance officer advised Mr Sloan that there was nothing they could do. The ambulance officers did not attempt to resuscitate Mr Walsh.
18. Mr Walsh was pronounced dead at Royal Prince Alfred Hospital.

Master Subcontract with Visionstream

1. The defendant undertook to operate under a subcontract agreement with Visionstream.

Risk Assessment

1. On 17 February 2015, a Plant Hazard Assessment was undertaken and documented. The Assessment was facilitated by Noel Lynch, OHS&E Coordinator and Mick Caulfield was the assessment participant.
2. A Plant Hazard and Risk Assessment of the Vermeer directional drill dated 10 March 2015 undertaken by Vermeer Equipment Holdings Pty Ltd was provided by the defendant to SafeWork NSW pursuant to a s 155 notice as a guide for horizontal drilling.

Job Pack/START CARD/SWMS

1. For the works at Station Street, Katoomba the defendant was provided with a job pack/job sheet containing site maps of work to be undertaken.
2. Workers were required to start the day with a Job Safety and Environmental Analysis, also referred to as a START CARD. The purpose of the START CARD was to identify site hazards and assess and then implement appropriate control measures. Workers are required to sign off to confirm these had been carried out.
3. Prior to the incident START CARDS for the workplace were completed on 17 March 2016, 18 March 2016, 21 March 2016, 22 March 2016, 23 March 2016, 24 March 2016, 29 March 2016, 30 March 2016, 31 March 2016 and 1 April 2016.
4. A Visionstream Excavation - Permit for the defendant to start directional drilling at Station Street, Katoomba on 30 March 2016 was signed on 30 March 2016.
5. At the time of the incident, the defendant had a Silcar Safe Work Method Statement ("SWMS") in place for horizontal directional drilling dated 1 October 2013. The SWMS was signed by Paul Walsh on 7 December 2015.
6. An earlier document titled "SWMS - Horizontal Directional Drilling 'SILCAR Communications' NAT SC-SWMS-075.02" - dated 12 December 2013 had the same procedural requirements as the SWMS noted above. This SWMS was signed by Paul Walsh on 19 June 2014.

The SafeWork NSW Code of Practice

1. A SafeWork NSW Code of Practice "Managing the risks of plant in the workplace" dated July 2014 was available online prior to the incident.

Documentary Evidence

1. The documentary evidence is summarised below.

The Work Site

1. The defendant was conducting horizontal directional drilling operations in Station Street, Katoomba on 1 April 2016. Station Street ran north-south. The Vermeer directional drill was near the southern end of Station Street, just across the road from the Katoomba Court House. It was drilling in a northerly direction, approximately 40 metres downhill.

The Vermeer Operator's Manual

1. The prosecutor tendered the Operator's Manual for the Vermeer directional drill (PX 1, Tab 11).
2. Section 10 of the Operator's Manual dealt with "Safety Messages" (p 25). It contained the following warning: "Failure to follow any of the preceding safety instructions or those that follow within this manual, could result in serious injury or death. This machine is to be used only for those purposes for which it was intended as explained in this Operator's Manual." (p 28)
3. The Operator's Manual contained a Lockout Procedure for use with a remote lockout (pp 109-111) and a Lockout Procedure without a remote lockout system (p 112). The Vermeer directional drill had a remote lockout which enabled the worker conducting the tracking of the drill head (in this case Mr Walsh) to press a button on the tracker and lock out the drill, thus preventing it from operating.
4. The Lockout Procedure with remote lockout said: "DANGER: Rotating drill string can kill. Unexpected start-up possible. Lock out before working on drill string. It is essential that the machine is locked out before entering an exit pit, changing tools, repairing drill rod, manually adding or removing drill rod, or performing any other work on the drill string or tools." (p 109)
5. The Operator's Manual also dealt with "Personal Protection". It said: "Operating the machine will require you to wear protective equipment. Always wear a hard hat…. Other workers in the immediate area must also wear hard hats and eye protection." (p 172)
6. A p 202 the Operator's Manual dealt with "Entrance and Exit Sites - Prepare". It said: "WARNING: Do not work in trench with unstable sides which could cave in. … If needed, dig entry and exit pits at the correct location and depth to properly complete the bore."
7. A p 213 the Operator's Manual dealt with "Exiting the Bore". It said: "It is critical to maintain good communication between the machine operator and the locator operator. When the bore reaches the exit point, crew must ensure everyone is clear of the area. The operator should be ready to turn off drilling fluid pump as drill head exits the ground. Once drill head exits the ground, follow 'Lockout Procedure - With Remote Lockout', p 30-15, or 'Lockout Procedure - Without Remote Lockout System', p 30-18, so that inadvertent start-up and rotation do not occur during the tooling change."
8. At p 214 the Operator's Manual dealt with "Changing Tools at Remote Exit Pit". It said: "Extreme care must be taken during any tooling changes on the machine. Clear and understandable communication between members of the directional drill unit's crew is crucial for proper, complete and efficient installation of the utility in a safe and timely manner. The distance between drill unit and drill string exit location may prevent visual contact and direct voice communication between the crew at the exit location and the machine operator. DANGER: Rotating drill string can kill. Unexpected start-up possible. Lock out before working on drill string."
9. A p 216 the Operator's Manual set out four steps involved in removing the drill head from the drill string. The Manual said nothing about where this operation should take place.
10. At p 218 the Operator's Manual dealt with "Pullback". In that section the manual said (at p 219): "DANGER: Drill string and tooling can rapidly move sideways along the ground at the exit location if rotation is started when drill rod or tooling is on the ground, away from the exit hole. The larger the diameter of the reamer and the more drill string exposed the faster and farther the reamer and drill string can travel. Death or serious injury will occur if anyone is entangled or struck by drill string or tooling. Pull tooling up to exit hole before rotating. Everyone must be well away from exposed drill string and tooling before rotation is started. NOTE: Each rotation of the drill rod can cause an 8 inch (20 cm) diameter reamer to rapidly travel 2 feet (60 cm) and a 16 inch (41 cm) reamer to travel 4 feet (1.2 metres)."

Safe Work Method Statement

1. The SWMS (PX 2, Tab 13) for horizontal directional drilling, applicable as at 1 April 2016, was a document on the letterhead of Silcar Communications. This was the previous name of Visionstream.
2. Page 5 of the SWMS contains four entries relating to "Undertake Drilling Operation". Two of the entries relate to commencement of drilling and two relate to "undertaking the walkover".
3. The SWMS then deals with the task of "Perform Bore Hole Reaming" and has four entries on that topic. Two of these relate to "remove drill head and attach reamer". The event during which Mr Walsh was struck by the drill occurred when the drill was being positioned so that he could remove the drill head. The first entry in relation to removing the drill head refers to working near plant or machinery and sets out the control for such risk as follows: "Ensure that the drilling rig is securely anchored in place to prevent it from moving and remove keys or ignition source from the machine before undertaking the inspection."
4. This control clearly relates to risks involving the Vermeer directional drill itself, rather than the opposite end of the operation where the drill has exited the bore hole in the exit pit.
5. The second entry relating to removing the drill head sets out the following control: "Wear required PPE, safety footwear, rigger's gloves, safety helmet and high-visibility clothing".
6. The SWMS is silent as to the method to be used for removing the drill head or any particular risks involved in that operation, apart from the general risk stated as "working near plant or machinery".
7. The prosecutor tendered a previous version of the SWMS dated 12 December 2012 (PX 2, Tab 14). This was in similar format to the SWMS in force at the time of the accident (PX 2, Tab 13), but the typewritten requirement to wear rigger's gloves and safety helmet had been deleted by hand and the deletion had been initialled.

Plant Hazard Assessment

1. The defendant conducted a Plant Hazard Assessment ("Assessment") of the Vermeer directional drill (PX 2, Tab 15). The Assessment was conducted on 17 February 2015 by Mr Noel Lynch and Mr Mick Caulfield, who was described as the "drill operator". On p 3 of the Assessment the following was stated: "Operation of machine as per manufacturer's recommendation, maintenance also per manufacturer's recommendations. All personnel to be trained and be aware correct systems of work and code of practice. Site Safety Rules to be implemented. Keep clear of drill."
2. The Assessment recognised that there were risks of entanglement, crushing, or being cut, stabbed or punctured. On p 5 the Assessment stated: "Keep well clear of drill when operating. Isolate working area. Constant UHF communication between operator and tracker."

START CARD

1. At the Station Street site there was a meeting of the workers each morning which resulted in the creation of a START CARD. This document was also described as an "Authority to Work Permit". All of the START CARDS were tendered, commencing with the document dated 17 March 2016 (PX 2, Tab 20).
2. The four-page START CARD for 1 April 2016 was at pp 37-40 of PX 2, Tab 20. The start time was 7.00am. Safety equipment included "hard hat around excavator". The START CARD mentioned drilling and pulling back the pipe (p 39) but did not identify any specific risks relating to that work. The defendant's workers on the job signed off on the START CARD (p 40). This included Mr Caulfield and Mr Walsh.

Padraig Luddy

1. Mr Luddy was an excavator operator who conducted subcontract work for the defendant. He provided a written statement (PX 5) but was not called to give evidence and was not required for cross-examination. Mr Luddy said that at the time of the incident he was tracking his excavator in a direction away from the drilling head to collect an excavator bucket. As a result his back was turned towards the incident and he could not offer any explanation as to what happened.

Jason Lennon

1. Mr Lennon had been employed since 2013 by the defendant as a labourer/drill operator. Mr Lennon provided a written statement (PX 6). He was not called to give evidence and was not required for cross-examination.
2. Mr Lennon did not operate the Vermeer directional drill. He said that toolbox talks occurred every day where a pre-start meeting was conducted by the supervisor, who was Mr Walsh. He had been instructed "to stand well away and nowhere near the head". Mr Lennon said that "no-one is to approach the drill whilst it is in operation, and only approach the drill when the operator advises the drill is off".
3. When the incident occurred, Mr Lennon was waiting for the drilling procedure to finish. He was standing approximately 30 metres away and did not see the actual event. He saw Mr Caulfield walking towards the drill head and he sensed that something was wrong. Mr Lennon said that he did not know how the incident occurred or what caused it.

Brian Sloan

1. Mr Sloan was employed on the site by D & D as a traffic controller. He took part in the pre-start meeting and signed the START CARD on 1 April 2016. Mr Sloan was standing on the western side of the roadway adjacent to where the incident occurred. He was looking to his east and was thus looking towards Mr Walsh. Mr Sloan said he saw the excavator and Mr Walsh standing at the side of the excavator. The excavator was parallel to the exit pit and was west of it. The excavator was on the road. Mr Sloan saw Mr Walsh to the east of the exit pit. Mr Walsh was looking to the west, in other words towards where Mr Sloan was standing.
2. Mr Sloan was looking towards the exit pit when the incident occurred. He heard a metallic noise. He saw the drill "arc up like a rainbow and flick out of the hole". He saw Mr Walsh drop to the ground. Mr Sloan marked a copy of Photo 11 at PX 1, Tab 7, to indicate where he saw Mr Walsh last standing. He marked the photo at about G10 on the grid surrounding the photo. The marked photo became PX 7.
3. Mr Sloan was cross-examined. He said that Visionstream controlled the site. It was Mr Sloan's first day at the site. He did not know if anyone from Visionstream was there.
4. Mr Sloan was cross-examined about his recollection of the drill arcing up out of the pit. He said that he couldn't say what the shape of the pit was. He saw the drill come out of the pit in an arc.
5. In answer to a question from the Bench, Mr Sloan said that he was about 15 metres away from the site of the incident, standing across the road from it.
6. Mr Sloan had a clear view of the incident. I accept his evidence as accurate.

Erika Groll

1. Inspector Groll from SafeWork NSW provided her own eight-page report (PX 1, Tab 3). She also provided a second report concerning visits to the site on 4 and 5 April 2016 (PX 1, Tab 4).
2. In cross-examination Inspector Groll said that Visionstream controlled safety on the site. Some of the dimensions which Inspector Groll had put in her report were queried. Inspector Groll was cross-examined about p 4 of PX 1, Tab 4. She was asked whether she thought that Mr Walsh had been using stillsons in that way. Inspector Groll said that she was not an expert on how drill heads were changed, but she was not looking at that particular issue.

Donna Pearson

1. Ms Pearson was a traffic controller employed by D & D at the Station Street work site. She had done this work for four years prior to the incident on 1 April 2016. Her job included stopping traffic if there was machinery moving around the site and stopping pedestrians going on to the job site. She was positioned at the southern end of the job site on Station Street. Just before the incident occurred, she had walked back to her car to get something. Her car was north of the work site. She was then walking back towards the work site, up the hill and towards the south.
2. Ms Pearson said that she heard Mr Walsh swear and then she saw him fly up into the air 1½ to 2 metres and fall down. Mr Walsh was up the hill and to the south. She saw him on the left side of the pit looking into the hole. He was next to the fence of premises adjacent to the work site. She said that Mr Walsh was looking into the hole and facing west. She saw part of the drill come up and hit Mr Walsh in the head and she then saw him fly through the air. What hit Mr Walsh was a "pole with a drill head on the end". Ms Pearson said that she was about 10-15 metres away when she saw this happen.
3. Ms Pearson was cross-examined as to exactly where she was when she saw the event happen. She was definite that Mr Walsh was looking into the hole just before he was hit.
4. Ms Pearson had a clear view of the incident. I accept her evidence as accurate.

Michael Caulfield

1. Mr Caulfield was employed by the defendant as a drill operator. He regularly operated the Vermeer directional drill. He had certificates to show that he had a verification of competency on the Vermeer directional drill and he had written authority to operate this type of machinery. He had been operating the Vermeer directional drill for 11½ years prior to 1 April 2016. He had been employed by the defendant for all of that time.
2. Mr Caulfield described the Vermeer directional drill as a machine that had a mechanical system that creates a drill string made of rods. The drill string is then used to drill a horizontal bore underground. Each of the rods is about three metres in length. At the working end of the drill string is a drill head. This is 1.2 metres long. It is hand-screwed onto the drill string and then tightened up. Mr Caulfield sat in the cabin of the driller to operate the controls that cause the Vermeer directional drill to function and the drill string to be created.
3. The Vermeer directional drill could push the rods forward or pull them back. It could also rotate the drill string in a clockwise direction. The drill head would not be rotated in a counter clockwise direction, as otherwise it would undo the rods in the drill string. The drill head had a cone on it and it worked "like a clock". Mr Caulfield could rotate the drill head up or down or to the side, so that the bore underground could be drilled in different directions.
4. If the drill head met solid rock, then Mr Caulfield had to "spoon" the drill head to get direction. This meant going back and forwards at different angles so that progress was made through the rock before the drill head could then bored through.
5. While Mr Caulfield was the drill operator, he always worked with a head tracker. This was the job performed by Mr Walsh on the day of the incident. The head tracker had an electronic device which could perceive the location of the drill head underground. Mr Caulfield and Mr Walsh were in constant radio communication. Mr Walsh described to Mr Caulfield where the drill head was and where he wanted it to go. The aim was for Mr Walsh to direct the drill head so that it emerged into the exit pit which, on the day of the incident, was about 40 metres north of Mr Caulfield in the Vermeer directional drill.
6. Mr Caulfield was familiar with the SWMS applicable on the job. There was a SWMS in each work truck and each worker in that gang signed on to that particular SWMS. Mr Caulfield also signed onto a START CARD each day. It listed the events of the day which were to be carried out, the machinery to be used on the job, health hazards, PPE and safety matters. There was a meeting each day to discuss the work to be done and the crew would go through those topics. Somebody then filled out the START CARD and each worker signed off on it. Mr Caulfield identified his signature on the last page of the START CARD for 1 April 2016. He did not have a specific recollection of the pre-start meeting on that date.
7. Mr Caulfield recalled that the bore emerged into the exit pit, but it was not in the position that he wanted, so it was pulled back out and there was a second exit hole drilled in the southern face of the exit pit. The exit pit was about 40 metres downhill from and to the north of the Vermeer directional drill.
8. Mr Walsh was in constant radio contact with Mr Caulfield. Mr Walsh told Mr Caulfield that the drill head had emerged into the exit pit. He told Mr Caulfield to push the drill head on a 10 o'clock bearing towards the northern face of the exit pit. Mr Caulfield pushed the drill string and the drill head into the northern wall at 10 o'clock and then started rotating to drill from the northern face up and out of the ground, north of the exit pit.
9. It was usual practice that once the drill head had been delivered to the pit, the drill head would be removed and replaced with a reamer or a pullback device. Mr Caulfield said that there was no form of written instruction or SWMS provided by either Visionstream or the defendant for the purpose of driving the head above ground. He said that it was common knowledge that drill heads were sometimes removed in the pit, and sometimes removed when they were out of the pit and on the ground. He knew that the Vermeer Operator's Manual did not mention either method. To his recollection the manual did not say you could do it in the pit or out of the pit. Mr Caulfield used the Vermeer Operator's Manual all the time when he needed to solve a problem with the Vermeer directional drill or needed parts for it.
10. Mr Caulfield said that Mr Walsh told him to push the drill head into the northern wall and then drill it out, upwards and above the ground. He had directed the drill head to a 10 o'clock bearing, and thus was drilling the drill head into and through the north face of the exit pit, and then west up towards the bitumen footpath north of the exit pit. Mr Walsh reported by radio that the drill head had emerged from the surface of the footpath through the bitumen. Mr Walsh then told Mr Caulfield to push it out. Mr Caulfield said that he stopped rotating the drill head, and simply pushed it forward up and out of the ground.
11. Mr Walsh told Mr Caulfield that it had been pushed out too far and he asked Mr Caulfield to pull it back a bit. At this stage Mr Caulfield was not looking at the drill head. To operate the Vermeer directional drill he sat in the cabin, and looked towards the west so that he was looking at the gauges and controls and the components which the Vermeer directional drill assembled to construct the drill string. He was concentrating on the controls.
12. When Mr Walsh told Mr Caulfield to stop pushing, Mr Caulfield did look down the hill to the north. Mr Caulfield could not see the drill head but he could see Mr Walsh. Mr Walsh was standing to the north of the drill head. Mr Caulfield saw him in this position after Mr Walsh had told Mr Caulfield to stop pushing.
13. After Mr Walsh asked Mr Caulfield to pull the drill head back a bit, and he was pulling back, Mr Walsh was saying over the radio: "A little bit more, a little bit more". Mr Caulfield asked whether that was enough and Mr Walsh did not answer. At that point Mr Caulfield looked again to the north and saw that Mr Walsh had fallen over.
14. Mr Caulfield was asked whether he had an understanding as to whether there was a specified safe distance that Mr Walsh was supposed to be away from the drill. Mr Caulfield said that they usually stayed 1.5 metres away from the drill string and the drill head. There was no specific direction to that effect, but this was the way it was always done. He could not recall if that was in the SWMS. It was not recorded in the START CARDS. There was no requirement to put any markings on the footpath to indicate where 1.5 metres was, and Mr Caulfield indicated that experienced people would be able to gauge 1.5 metres for themselves.
15. Mr Caulfield was asked whether there was supposed to be a spotter, and he said there was no need for a spotter, and in any event a spotter could not communicate with Mr Walsh as Mr Walsh had a headset on through which he communicated by radio. A spotter was regularly used when excavation work was going on or when the drill was being unloaded. A spotter was never used during directional drilling. There were always only two people on the work site. The rest of the workers were excluded from the work site, which was the entire 40 metre length of the underground bore.
16. Mr Caulfield was aware that once the drill head was delivered into the target pit, the Vermeer directional drill was to be locked out, turned off and the key was to be removed. The job of Mr Walsh was to tell Mr Caulfield what to do and when the head was out. No-one went near the head until the Vermeer directional drill was locked out. The requirement that everyone remained clear of the area until the Vermeer directional drill was turned off and locked out applied also to Mr Walsh.
17. After Mr Caulfield saw Mr Walsh fall backwards, Mr Caulfield stopped and locked out the Vermeer directional drill. He then went to assist Mr Walsh.
18. Mr Caulfield identified a Visionstream post-accident SWMS dated 22 June 2017 which was used for work after that date.
19. The cross-examination of Mr Caulfield commenced by him being asked to identify the risks of which he was aware. Firstly he said that if a worker was too close to the rods, they could get tangled up in them. As the rods rotated they could become caught up in them. He said that if the rod was under the ground and the drill tracker was standing very close to the drill string, there was no risk. As the drill had approached the exit pit, but had not broken through, there was no risk to the tracker. Mr Caulfield said that as the drill head entered the exit pit there was no risk to the tracker, as the drill head was 1.2 metres long, and if it was only just pushed into the pit it could not "jump up and grab them". The drill head was about 35-40 kg in weight.
20. It was the job of the drill tracker to monitor when the drill head was about to break through into the exit pit. The tracker would tell the drill operator to turn the high pressure water off just before the head reached the exit pit. The tracker would then instruct the drill operator to stop rotating and simply push out into the pit. The revs were dropped and the drill head would just idle out creating an exit hole into the pit. Once the drill head was in the pit, it would simply be pushed further into the pit and not rotated.
21. Mr Caulfield agreed that the exit pit in this case was about two metres long. He said that when the 1.2 metre drill head had emerged into the pit, it had behind it about 40 odd metres of rods on the same line, so they would just sit in the same exit hole.
22. Mr Caulfield was cross-examined about whether it was possible to get the drill head off within the exit pit. He said that it would not have been possible to pull back and drill out again into the centre of the exit pit. The only option was to try and change the drill head above ground, rather than in the pit. Mr Caulfield was then shown a photograph of the northern face of the pit and he marked with an orange pen where the drill head bit into the northern face (DX 1). Mr Caulfield had pushed it in at about 10 o'clock. He said that it bit in for about half a foot and then Mr Walsh directed him to drill the rod forward and out. The drill head was then being drilled upwards at an angle, and to the left (i.e. on a 10 o'clock bearing). Mr Caulfield agreed that the drill string and drill head would have been on a sort of a curve at that point in time. It was heading upwards, on an upward curve.
23. Mr Caulfield was not able to see the drill head break through the bitumen on the northern side of the exit pit. He knew that the drill head went through as Mr Walsh told him that. Mr Caulfield was still looking at the controls of the Vermeer directional drill (i.e. to the west) when Mr Walsh told him to pull back a bit. Mr Caulfield understood that the drill head had gone too far and was a bit too high off the ground. He understood that Mr Walsh wanted it taken back and closer to the ground so that the rod crackers could be put onto it to remove the drill head. He did not rotate the drill head to take it back, he simply pulled it back. The next time he saw Mr Walsh was when Mr Walsh was falling over. He was then in a different position to where he had been seen north of the drill head. He was to the right (i.e. east) of the drill head.
24. Mr Caulfield was asked about the suggestion that the only place that you could change or remove the drill head was in the exit pit. He disagreed with that proposition saying you would have to enlarge the hole and they could not do that because of other services running through it. He had received quite a bit of training from Vermeer, and Vermeer had never suggested to him that he had to change the drill head only in the exit pit. He had seen Vermeer safety videos, which had shown Vermeer changing drill heads on the ground rather than in the exit pit.
25. Mr Caulfield was shown a photograph depicting the drill string poking into the exit pit and hanging over the northern side of the pit. He marked the point where the drill head joined onto the drill string and where the first drill rod joined the second drill rod. (DX 2)
26. Mr Caulfield was cross-examined about whether he understood that the drill string and the drill head had broken out of the ground and moved across to hit Mr Walsh in the head. He said that he had not recognised that as a risk in this situation. He said that he had drilled the head out of the ground, by drilling through hard ground. It had not simply been pushed out of the ground. He thought that he had drilled through solid material. While the drill string was not rotating, but was simply pushed out, he did not consider there was any risk to anybody. He did not think that there was a risk that the drill head and drill string could break out of the ground and move to hit Mr Walsh. He said that it was a hard surface that he had to actually push into and drill out of. It was not a soft surface but had a solid base.
27. In re-examination Mr Caulfield said that he pushed into the northern face of the exit pit at 10 o'clock and was going up and to the left. As a consequence of moving up and to the left, he agreed that there was "stored energy" which if released would cause the drill string and drill head to move back to the right. He said "it would, of course". Mr Caulfield said that he had never heard of that happening and that he had drilled into a hard surface. He agreed that one of the factors to be taken into account in drilling up to the surface through the sub-strata and the bitumen was that he had to take into account the strength of the sub-strata. Mr Caulfield agreed that if the sub-strata had a fracture in it or a weakness, that might result in failure as a consequence of the "stored energy". He said that he thought it was safe enough to drill it out.
28. Mr Caulfield was asked whether on previous occasions, when the drill head could not be removed in the pit, he had made the hole bigger. He disagreed, saying that if the ground was safe, he used to drill it straight out or push it to the left and drill it out. He said that he knew when he was drilling if it was safe or not. He had been doing it long enough to know whether the ground was hard enough or not.
29. In answer to questions asked from the Bench, Mr Caulfield indicated that the dotted line which he marked on DX 2 was his understanding of where the drill head travelled after he pushed it into the north face of the exit pit. He said that the drill string and the drill head flicked up vertically and then to the right, striking Mr Walsh. Mr Caulfield made it plain that he did not see this happen but that he was just working out what would have happened. Mr Caulfield says that the only thing he did see was Mr Walsh falling back after he stopped talking to him.
30. Mr Caulfield was an experienced operator of the Vermeer directional drill. He was candid and careful in answering questions. I accept him as a witness of truth. I find that his evidence about the events of the day is accurate. My findings of fact about the incident are largely based on his evidence.
31. Mr Caulfield's evidence about his practices and in particular about the 1.5 metre separation distance are accepted as evidence of how he did his job. They are not evidence of accepted industry practice unless corroborated by other evidence (in this case, the evidence of the experts).
32. I accept Mr Caulfield's evidence that he perceived that he was drilling through solid material to the north of the exit pit which would be sufficient to hold the drill string in the ground. Of course he was 40 metres away and had no sight of the ground conditions. Nor did he have any radio report from Mr Walsh about the ground conditions. Tragically, the ground through which he drilled was not strong enough to hold the drill string, which contained stored energy.

Expert Evidence

1. The prosecutor retained Mr Charles Stockton as an expert witness. He holds a Bachelor of Engineering in Civil Engineering. Mr Stockton has over 25 years of experience in the horizontal directional drilling industry in Australia and worldwide. He has supervised and managed horizontal directional drilling projects throughout the world.
2. The defendant retained two experts. Mr Adam Shayler has worked in civil infrastructure for 33 years. He has been involved in more than 800 projects involving horizontal directional drilling. He managed a company between 2001 and 2007 which specialised in installing pipe infrastructure using horizontal directional drilling.
3. The defendant also retained Dr Shane Richardson. Dr Richardson is a forensic engineer who has conducted over 1,000 investigations into accidents, including industrial accidents. His field of expertise is not horizontal directional drilling, but rather mechanical engineering and incident analysis generally.
4. All of the experts gave their evidence-in-chief by written expert reports. All three experts attended court and gave joint expert evidence, during which they were asked questions by both counsel.
5. Mr Stockton provided an initial expert report dated 21 June 2019 (PX 12). Dr Richardson provided a report dated 18 January 2021 (DX 3) and Mr Shayler provided a report dated 27 January 2021 (DX 4).
6. Mr Stockton provided a report in relation to that of Dr Richardson (PX 13) and a report in response to that of Mr Shayler (PX 14).
7. The three experts met in an expert conclave. This resulted in helpful conclave reports. Mr Stockton and Mr Shayler provided a conclave report (PX 15) and Mr Stockton and Dr Richardson provided a conclave report (PX 16). As a result of these reports after the expert conclave, the issues in dispute between the experts were considerably narrowed and refined.
8. All of the experts were asked to make a series of factual assumptions about how the incident occurred. The mechanism of the events which caused the drill head and the drill string to strike Mr Walsh is set out in the report of Mr Shayler (DX 4) as follows: "In the case in question it appears that the drill string was pushed initially into the exit pit, extended through the 1.5m long exit pit excavation and then pushed back into the existing ground before exiting the surface another 2m beyond the far face of the excavation. When the incident occurred the drill string was extending above the ground surface and was not rotating. In this case it appears that the drilling rods broke away from the ground material (beyond the exit pit) constraining them and as they had some degree of bend induced into them from being pushed through a radius in the ground, they wanted to revert back to a static position however now given the length the drill rods extending from the face of the exit pit (4.431m) the stored energy in the drill rods caused them to move sideways beyond the edge of the exit pit before reaching a static equilibrium position… back closer to the edge of the exit pit."

Charles Stockton

1. In his first report (PX 12) Mr Stockton was asked to answer a series of questions. The first question was: "Immediately before Mr Walsh was struck was it necessary for him to be so close to the exit pit and looking into the exit hole such that he could be struck by the moving parts of the horizontal directional drill?"
2. The response of Mr Stockton was: "13. The drill tracker must be directly over the drill bit whilst they are tracking the drill and whilst the drill is still below ground. He will place the DigiTrak receiver on the ground directly above and in front of the bit to provide guidance information to the driller. The tracker himself can place the receiver over the drill path and then move off to one side if the bit is getting close to the surface. He will need to periodically operate the receiver during this time to receive depth and target information. 14 Once the bit enters the pit the drill tracker does not need to be in close contact with the drill pipe or bit whilst the pipe is still moving. They must be in a position where they can observe the drill head and relay the information by radio to the driller. 15 Mr Walsh may not have recognised the stored energy in the drill pipe if it had become deflected and may not have recognised the direction of travel if it was to be released. 16 On drill sites it is critically important for workers to be able to identify all potential sources of stored energy. Inexperienced workers must be taught to identify these sources. This potential hazard was not specifically addressed in the Risk Assessments and SWMS."
3. The second question asked of Mr Stockton was: "Specifically, at the time that Mr Walsh asked Mr Caulfield to pull back the drill head and drill string because it was too far out of the ground was it necessary for Mr Walsh to be so close to the drill head and drill string such that he could be struck?"
4. The response of Mr Stockton was: "17 No, he did not need to be in such close proximity to the drill head and should have maintained a safe separation from the drill head and drill string. His role at that time was to observe and provided feedback to the operator and not to interact with the drill pipe. 18 Mr Walsh did need to be in a position where he could clearly observe the tooling so that he could stop the drill pipe at an appropriate position and height above the ground where he could then access the tool joint between the head and drill string to be able to remove the head. 19 Clear and precise radio communications must be established between the drill operator and the pipe side worker. The pipe side worker needs to have positive confirmation from the drill operator that the drill is locked out before approaching the drill string."
5. The third question asked of Mr Stockton was: "Could Mr Walsh have performed his duties immediately before he was struck without being so close to the exit pit that he was struck by the drill head or drill string?"
6. The response of Mr Stockton was: "27 Yes, he only needed to be in a position where he could observe the head and drill string. 28 If the drill head had started to dig into the north wall of the pit (opposite end to where it exited the ground) then the pipe side operator would need to approach the pit to a position where he could observe the head. The dimensions of the pit and the depth of the drill would dictate the distance back from the pit this could be achieved. 29 If unplanned movement of the head did occur such as the drill bit not exiting the pit and deflecting down under the pavement then it is likely the pipe side operator would approach to observe what was happening. This type of unplanned event is very hazardous and is not addressed in the SWMS and Risk Assessment."
7. Mr Stockton was asked to comment about whether an exclusion zone could be used (p 11 of PX 12). Mr Stockton said: "My recommendation would be for all personnel to stay behind the bit and observe as illustrated below. In this position they have a good view of the operations and stay out of the direction of travel for both the drill pipe and the high-pressure drilling fluids."
8. Below that recommendation was a drawing made by Mr Stockton which is reproduced below:
9. Mr Stockton suggested that a safe position to observe the operations was for the operator to stand near the southern edge of the exit pit. From this point the operator could see the drill head emerge into the exit pit, enter the northern face of the exit pit and emerge north of the exit pit. Clearly such a position would have meant that Mr Walsh was not standing on the side of the exit pit, adjacent to the drill string, which was under tension having been drilled into the northern face of the exit pit and out of the ground to the north of the exit pit. Nor would he have been standing on the eastern side of the drill head and drill string, which was the direction in which the drill string would move if the stored energy was released when the drill string broke free from the ground.

Adam Shayler

1. Mr Shayler in his first report (DX 4) pointed out (p 8) that a rotating drill string is a hazard because loose clothing can become caught in it. This can cause serious injury or death. He also said: "It is not reasonable for the drilling personnel to have anticipated that the ground restricting the movement of the drill rod would fail and cause the drill rod string to react as it did especially considering that the ground had been indicated as hard and rocky and the drill rods at the time were static and not being rotated."
2. He also said (p 10): "Extending the drill string beyond the level of the ground surface is common practice dependent on the circumstances of the particular drill location."
3. Mr Shayler said (p 11): "There is no way a static drill string protruding a maximum of 1.8m above the ground surface could have moved sideways to the location of the drill rig offsider standing 1.5m laterally away from the drill string. This is based on the stiffness of the drill string and the fact it was restrained in the ground."
4. Mr Shayler said (p 12): "Whether or not the drill head is removed in the exit pit will be subject to a number of criteria. Generally in my experience the drill head removal is not performed in the exit pit. The changing of tooling in the exit pit involves personnel actually having to get into the pit. By changing the tooling on the surface negates the need for personnel to have to enter the pit and in most cases work in a restricted environment. It also removes the risk of potential pit collapse and the need to pump drilling fluid out of the pit prior to entry."
5. The conclusion of Mr Shayler (p 14) was expressed as follows: "In conclusion considering the facts relating to the incident in question I believe based on my extensive experience with works of this nature that the works were conducted in accordance with accepted industry practice and that systems employed on site to prevent injury from the operation being conducted were adequate given the circumstances. It could not have been reasonably anticipated that the drill rod string would break through the ground restraining it beyond the exit pit, especially considering the hard and rocky nature of the soil, while static (i.e. not being rotated) and move laterally by up to 2m to impact the drill rig offsider standing 1.5m laterally away from the exit pit. The likelihood of this occurring was extremely low and could not reasonably have been anticipated."
6. In his response to the report of Mr Shayler, Mr Stockton (PX 14) said that in his field experience he had never seen a distance of 1.5m prescribed or adopted as an industry accepted practice.
7. Mr Stockton also said (par 36): "Mr Shayler states that once the drill string has been brought to surface and is not rotating the risk of injury is very low. I would concur that probability is very low if drilled directly to surface or into an exit pit (not a combination of both), but the consequences are extremely high, and would suggest it is preferable to implement an engineering control rather than rely on an individual's perception of the risk."
8. Mr Stockton expressed the view that the measures taken were inadequate to protect Mr Walsh. He said (par 38): "The drill pipe was not allowed to travel freely up an open trench but was instead steered and possibly deflected through a very shallow section of weak formation. The drill pipe was not restrained in any way to prevent movement and personnel were not required to observe a safe distance proportional to the length of the drill pipe, therefore the measures taken were not adequate."
9. Mr Stockton indicated that he disagreed with Mr Shayler saying that the works were conducted in accordance with accepted industry practice. He said (par 42): "I feel strongly that the HDD industry should always adopt best practice, and this should not be confused with accepted practice, regardless of the industry or the scale of the project they are working on."
10. Mr Stockton also indicated disagreement with the conclusion reached by Mr Shayler (par 44) as follows: "Mr Shayler suggests it could not have been reasonably anticipated, which I believe is incorrect. It would be very poor judgment to suggest a narrow triangle of fractured near surface material could be considered as a positive restraint on the drill pipe and it is important not to confuse the actual exit point with the position the drill pipe re-emerged from the bitumen. It is unclear to me whether drilling through the section on the northern side of the pit was intentional or not. However it is well known by me and all personnel familiar with the industry that the last few metres drilled to surface will fracture and lift as the head displaces the shallow soils."
11. The conclave report between Mr Stockton and Mr Shayler (PX 15) expressed agreement on the following matters: 1. The longer the length of unrestrained drill string the more the sideways movement may be exacerbated. 2. The drilling rods broke away from the ground material constraining them as they had some degree of bend induced into them. 3. The exclusion zone is there to restrict all non-essential personnel to the drilling operation not just the public. 4. The 1.5m separation mentioned in the report of Mr Shayler does not refer to any recognised standard or guidelines. 5. Allowing the drill to re-enter the formation on the northern side of the pit and then to be steered out allowed additional forces to be applied to the drill pipe. 6. It is best practice and preferred for hard hats and other required PPE to be mandatory. For the given circumstances the use of a hard hat was unlikely to be the decisive factor in the outcome. 7. The drill head can be changed safely either in a pit or on the surface with the right work methodology and risk assessment. 8. The manufacturer provided little or no instruction into the safe drilling practices to be adopted but concentrated on the safe operation of the Vermeer directional drill. 9. Because it is always done this way does not make it safe. 10. Mr Shayler agreed that he would not plan to do the work this way. 11. Steering through the additional section caused a deflection of the drill string which created the stored energy, and this methodology is not normal practice in most circumstances.

Shane Richardson

1. Dr Richardson, as previously recited, was not a person who was an expert by training or experience in relation to horizontal directional drilling. He is highly qualified in relation to the physics of accidents and their investigation. Dr Richardson was basically asked to offer views about how the incident happened, and the distances and forces involved. He reached conclusions similar to those reached by Mr Stockton and Mr Shayler. In summary, he estimated that the drill string whipped approximately 18 degrees vertically up and 10 degrees horizontally to the east. The drill string had taken this course after it broke through the ground north of the exit pit, which was restraining it until that ground fractured and released the drill string. The drill string contained stored energy.
2. In his report in response to the report of Dr Richardson, Mr Stockton (PX 13) doubted that there could be any precise analysis of distances and angles. He said this because there were too many "poorly defined variables to be able to develop a detailed reliable model". Mr Stockton expressed the view (par 31) that: "At some point during the operation of the drill the amount of stored energy in the drill pipe became too large for bearing capacity of the soil and suddenly broke through, whipping up into the air and to the right."
3. This is consistent with the path hypothesised by Dr Richardson.
4. In the conclave report between Mr Stockton and Dr Richardson (PX 16), Dr Richardson accepted that the drill string could flex and curve. He considered it "self-evident" that the drill string in the ground held stored energy which was released when the ground failed.
5. Dr Richardson accepted that he was not a drilling expert and did not possess drilling knowledge. Dr Richardson said that he applied "fundamental engineering and reconstruction knowledge to the provided images of the incident seen".

Joint Expert Evidence

1. The experts gave joint oral evidence on day three of the trial. All agreed that if there is stored energy present something needs to be done to assess the risk. If the drill string can move then what needs to be assessed is where a person can stand.
2. Mr Stockton and Mr Shayler agreed that the drill string is flexible. It can flex up to one metre left or right over a three metre length. The drill string can be manipulated underground to form a circle with a 30 metre radius.
3. Mr Stockton and Mr Shayler agreed that it is possible to change the drill head in or out of the exit pit.
4. Mr Shayler agreed that standing behind the pit is a safe position for the tracker to observe the drill head emerging. Mr Shayler continued to be of the view that the tracker could stand 1.5m to the side, if he thinks that the drill string was adequately constrained.

Additional Findings of Fact

1. I make the following findings of fact, over and above the agreed facts set out above. I have been assisted in this task by the proposed findings of fact set out in writing by both counsel (MFI 2 and MFI 5).

Findings of Fact about the Occurrence of the Incident

1. The agreed facts concerning the incident itself are set out in pars 87-95 above. My additional findings of fact on this topic are: 1. The drill head was 1.2 metres in length. 2. Each drill rod was three metres in length. 3. The drill head and the drill rods were joined together by the Vermeer directional drill to form a drill string. 4. The drill string was flexible, so that it could be drilled up or down or left or right. 5. The exit pit was approximately 40 metres away from the Vermeer directional drill being operated by Mr Caulfield. 6. The exit pit was approximately two metres long by 1.4 metres wide. 7. The exit pit was approximately 1.6 metres away from a boundary fence separating the footpath from the adjacent property. 8. The drill head entered the southern face of the exit pit at a depth of approximately 900mm. 9. The entry hole was close to the eastern wall of the exit pit. 10. It was not possible to remove the drill head in the exit pit due to the position of the entry hole, the existence of services exposed in the eastern wall of the exit pit and the impossibility of enlarging the exit pit because of services running through it. 11. After entering the exit pit, Mr Walsh had the task of removing the drill head from the drill string, so that a reamer could be attached and the drill string withdrawn back towards the Vermeer directional drill. 12. Mr Walsh was in constant UHF radio contact with Mr Caulfield and was giving him directions concerning the motion of the drill head and drill string. 13. The drill head was pushed forward to the northern face of the exit pit. 14. The drill head was not rotating as it moved from south to north in the exit pit, as it was simply pushed forward. 15. The drill head was pushed forward through the northern face of the exit pit and went in about a half a foot while being pushed. 16. The drill head entered the northern face of the exit pit at a depth of about 700mm. 17. The drill head was then rotated and the drill was oriented to the 10 o'clock position. 18. The drill head rotated through the earth north of the exit pit in a 10 o'clock orientation so that the drill head and drill string moved up and to the left. 19. This curving of the drill string put it under tension, which created stored energy in the drill head and drill string. 20. The drill head was rotated and moved forward for a horizontal distance of about two metres before it broke through the bitumen footpath. 21. Mr Caulfield perceived that the ground was hard as he had to drill through the ground north of the exit pit rather than push the drill head through. 22. At the direction of Mr Walsh via the radio, rotation of the drill head was stopped as the drill head broke through the bitumen surface. The drill head was then pushed further forward. 23. After the drill head had broken through the ground Mr Caulfield observed Mr Walsh to be located to the north of the drill head. 24. The drill head was pushed further north than was required. 25. Mr Walsh gave a radio direction to Mr Caulfield to pull the drill head and string back towards the south. 26. Mr Walsh moved position while this was taking place so that he then stood adjacent to the open exit pit and close to its eastern edge. 27. The drill head and the drill string, which had been contained in the ground north of the exit pit, broke through the ground, moving upwards and to the east (i.e. towards Mr Walsh). 28. The stored energy in the drill head and drill string, caused by the curve and tension, was released as the equipment broke free from the ground, causing a sudden movement of the drill head and drill string upwards and to the east. 29. The drill head and drill string struck Mr Walsh a fatal blow to the head. 30. Mr Caulfield had been looking at the controls of his machine and did not see this happen. 31. Mr Sloan and Ms Pearson did see it happen. 32. Mr Caulfield quickly realised that Mr Walsh was no longer communicating by radio, so he looked up. 33. Mr Caulfield saw Mr Walsh on the ground and then left his Vermeer directional drill to render assistance.

Findings of Fact Concerning Foreseeability and Industry Practice

1. I adopt as my first findings of fact on these topics the 11 matters of agreement set out in the conclave report between Mr Stockton and Mr Shayler (PX 15) and recited in par 209 above. The 11 matters are: 1. The longer the length of unrestrained drill string the more the sideways movement may be exacerbated. 2. The drilling rods broke away from the ground material constraining them as they had some degree of bend induced into them. 3. The exclusion zone is there to restrict all non-essential personnel to the drilling operation not just the public. 4. The 1.5m separation mentioned in the report of Mr Shayler does not refer to any recognised standard or guidelines. 5. Allowing the drill to re-enter the formation on the northern side of the pit and then to be steered out allowed additional forces to be applied to the drill pipe. 6. It is best practice, and preferred, for hard hats and other required PPE to be mandatory. For the given circumstances the use of a hard hat was unlikely to be the decisive factor in the outcome. 7. The drill head can be changed safely either in a pit or on the surface with the right work methodology and risk assessment. 8. The manufacturer provided little or no instruction into the safe drilling practices to be adopted but concentrated on the safe operation of the Vermeer directional drill. 9. Because it is always done this way does not make it safe. 10. Mr Shayler agreed that he would not plan to do the work this way. 11. Steering through the additional section caused a deflection of the drill string which created the stored energy, and this methodology is not normal practice in most circumstances.
2. I find that the risk posed by stored energy in the drill string was a recognised risk in the industry (see the evidence of Mr Stockton and Mr Shayler) and was a risk actually known to Mr Caulfield (see his evidence referred to above).
3. The risk was thus foreseeable. Mr Caulfield knew that such a risk was possible, but on the day he made a judgment call that the risk would not materialise.

Consideration of Element 1 - Whether the Defendant owed a Duty

1. It was not in contest that the defendant was a person conducting a business or undertaking, which owed a health and safety duty under s 19(1) of the Act.
2. I am satisfied beyond reasonable doubt that the defendant owed a health and safety duty.

Consideration of Element 2 - Whether the Defendant failed to comply with the Health and Safety Duty

1. Section 19 of the Act requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of persons carrying out work activities. Section 17 of the Act provides that a duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

The Risk

1. As recited above the word "risk" is not defined in the Act. Risk should not be interpreted in a complicated fashion. The risk is pleaded in par 7 of the Summons as follows: "The risk was the risk of workers, in particular Paul Walsh, sustaining serious or fatal injuries as a result of being struck and/or crushed by a moving drill string and/or drill head whilst the drill was being pulled back during horizontal drilling operations."
2. The risk was a general risk, which could have caused an accident in one of many ways. Mr Stockton and Mr Shayler agreed that the risk was one known in the horizontal drilling industry. Mr Caulfield knew of the risk and regarded it as obvious.
3. Clearly Mr Caulfield thought that the ground itself would hold the drill head and drill string, containing stored energy, in place while the drill head was being changed. Mr Shayler thought that drilling personnel could not have anticipated that the ground restricting the movement of the drill rod would fail. Mr Stockton was of the view that it was "poor judgment to suggest a narrow triangle of fractured near-surface material could be considered as positive restraint on the drill pipe". To resolve this difference of opinion I will make further findings of fact which are set out below.

Reasonably Practicable - Section 18

1. The phrase "reasonably practicable" is defined in s 18 of the Act. It requires the court to take into account and weigh up all relevant matters, including those listed in pars (a) to (e) in s 18.
2. I set out the findings of fact relevant to the matters which s 18 says should be taken into account.

Findings of Fact - The Likelihood of the Risk Concerned Occurring - Section 18(a)

1. I find the following facts: 1. As the drill head was manoeuvred in the 10 o'clock position past the northern face of the exit pit, it travelled upwards and to the left. 2. This created stored energy in the drill string, which if released would cause it to flex to the right i.e. towards the eastern side of the exit pit. 3. Mr Caulfield, who was an experienced driller, thought that because he had to bore through solid material, the ground would be sufficiently strong to hold the drill string in place even though there was stored energy in the string. 4. Mr Caulfield had no sight of the ground conditions at the northern face of the exit pit and no report by radio from Mr Walsh about those conditions. 5. It was impossible in any event to see the ground conditions as they were the underground conditions beneath the bitumen footpath. 6. Whether or not the ground through which the drill head was bored was sufficiently strong to contain the drill string, containing stored energy, was a matter which was unpredictable and indeed unknown. 7. It was inevitable if the drill string broke out of the ground to the north of the exit pit that it would flex upwards and to the right towards the eastern side of the exit pit. 8. Since the drill string was designed to be flexible, if it moved to towards the east it would move past a straight line, whip to the east and then move back towards the west until it reached a position where there was no stored energy and the drill string was no longer under tension.
2. In the light of those facts I find that there was a significant likelihood that the drill string would flex in an uncontrolled fashion towards the eastern edge of the exit pit, if it broke free of the ground which had been containing it under tension. The degree of likelihood was unknown to Mr Caulfield and Mr Walsh, and was unknowable in that the drill string was contained in ground material under the bitumen footpath, the strength and quality of which could not be seen or assessed. There was no attempt to assess the risk.
3. To put it another way, the risk that the drill string could strike a worker standing near it, while it was being pulled back during horizontal directional drilling operations, was reasonably foreseeable. In making this finding, I assess the likelihood of the risk prospectively and not retrospectively.

Findings of Fact - The Degree of Harm that might result from the Risk - Section 18(b)

1. I make the following finding of fact on this topic: 1. The drill head and the drill string were substantial metal pieces of equipment, containing stored energy, and the harm that might result from being struck and/or crushed by the moving drill head and drill string if they broke free from the ground was harm constituting serious injury or death.

Findings of Fact - What the Defendant Knew or ought reasonably to have known - Section 18(c)

1. In relation to knowledge of the hazard or risk, I find the following facts: 1. The defendant ought to have had knowledge of the hazard or the risk, as it was a risk known in the industry - see the evidence of Mr Stockton and Mr Shayler. 2. The defendant had actual knowledge of the risk of stored energy in the drill string - see the evidence of Mr Caulfield. 3. Mr Shayler accepted that he would not in practice have done the work in the fashion in which it was done by the defendant i.e. he would not have assumed that the ground would hold the drill head and drill string and contain the stored energy so that the drill head could be changed without risk.
2. As to what the defendant knew or ought reasonably to have known about ways of eliminating or minimising the risk, I make the following findings of fact: 1. There were ways of dealing with the drill head and drill string as it emerged into the exit pit, which would have meant that the drill head was being removed with the drill string having no stored energy - see the evidence of Mr Stockton and Mr Shayler. 2. The defendant was a specialised contractor in horizontal directional drilling and thus ought reasonably to have known about ways of eliminating or minimising the risk.

Findings of Fact - Availability and Suitability of Ways to Eliminate or Minimise the Risk - Section 18(d)

1. I make the following findings of fact on this topic: 1. The defendant should have ensured that the drill head tracker (Mr Walsh) was standing at a distance away from the drill head and drill string so that he would not be struck if the stored energy in the drill string was released. 2. This could have been achieved by the simple method of requiring Mr Walsh to stand to the south of the exit pit, as from this point he could have seen the drill head emerge into the exit pit, travel across it, and then travel upwards and through the bitumen footpath to the north of the exit pit. 3. There was no reason or necessity for Mr Walsh to stand as close as he did to the operating drill head and drill string, as it was being withdrawn back through the bore to the north of the exit pit. 4. As the drill head and drill string was being withdrawn to the south, Mr Walsh was not involved in anything to do with the equipment, apart from observing its path and relaying information by radio to Mr Caulfield, so that the drill head could be manoeuvred into a position where it might be removed. 5. An appropriate work health and safety system would have prohibited the drill tracker being in the danger zone adjacent to the drill head and drill string when it contained stored energy and might unexpectedly break out of the ground and whip across towards him.

Findings of Fact - The Cost Associated with Available Ways of Eliminating or Minimising the Risk - Section 18(e)

1. My findings of fact are: 1. There was no cost to the defendant in taking appropriate measures. 2. Establishing an exclusion zone, requiring the drill tracker to stand in a certain safe position, and training and instructing the workers in that appropriate method, could have been done as part of the general work health and safety system of the defendant, and did not require any additional equipment to be purchased or any costly or complicated training and instruction to be given.
2. I now consider each of the reasonably practicable measures pleaded in the four subparagraphs of the Summons.

Providing and Maintaining a System of Work

1. Paragraph 8(a) of the Summons pleads that the defendant should have provided and maintained a system of work which ensured five pleaded matters. Those five matters are themselves pleaded in the alternative, as they are joined by the words "and/or". I will consider each separately.
2. The first pleaded measure was to provide and maintain a system of work which ensured that there was an exclusion zone in place around all parts of the operational Vermeer directional drill including the drill head and drill string to ensure no person could come into contact with moving parts of the drill whilst it was in operation.
3. Even though the drill string was not rotating when it broke free from the ground, it was still in operation. Mr Caulfield had, at the request of Mr Walsh, started to withdraw the drill string back to the south. The drill string and the drill head were thus moving and in operation.
4. I find that there should have been an exclusion zone in place so that no person could come into contact with moving parts of the drill while it was in operation. While the primary focus of an exclusion zone would have been to ensure that workers did not become entangled in a rotating drill string, there were other ways in which persons might come into contact with the drill, including the release of stored energy, as occurred in relation to the particular incident in these proceedings.
5. An exclusion zone did not have to be one which physically excluded workers from the danger area. I find that it would have been sufficient, and reasonably practicable, for the defendant to instruct and require the drill tracker to stand (in the present instance) to the south of the exit pit, so that all observations could be made from a point where there was no possibility of being struck by the drill. If such a position had been adopted, then there was no risk of the drill tracker being entangled in a rotating drill string, and nor was there any risk of the drill tracker being struck if the stored energy in the drill string was released.
6. The second pleaded means of providing and maintaining a system of work was to have fencing in place around the exit pit so as to prevent anyone from being near the drill string and drill head of the Vermeer directional drill at any time whilst it was operating.
7. Fencing would have been a physical barrier to enforce an appropriate exclusion zone. Neither Mr Stockton nor Mr Shayler thought that it was necessary to have fencing to maintain an exclusion zone (providing that the defendant mandated and enforced a safe zone in which the tracker should stand) and neither expert gave evidence that this was standard practice in the industry. There would have been practical impediments caused to the flow of work if fences had to be erected around the exit pit and then removed. This would not have been a great inconvenience to the defendant. However, the positioning of the fences would have required a first step to be taken, which was to ensure that the appropriate exclusion zone had been identified.
8. As the opinion of Mr Stockton demonstrated, simply standing in a safe position, without the need for any fencing to be erected, was a sufficient measure. It is noted that the work area generally was fenced off so as to prevent anyone except the drill operator and the drill tracker being in the work zone.
9. The third pleaded means of providing and maintaining a safe system of work was to mandate that workers could not enter the work area where horizontal directional drilling was being conducted unless they were in full view of the Vermeer directional drill operator or unless they could be seen by a spotter.
10. There was no evidence that a spotter was necessary. Neither Mr Stockton nor Mr Shayler said that this was standard industry practice. Further, there would be difficulties with a spotter speaking to the drill tracker who had strayed into the danger area, or the Vermeer directional drill operator, as those two workers wore headsets and were communicating by radio. They may not have heard a spotter. The evidence in the case was that spotters were used by the defendant when machinery such as an excavator or the Vermeer directional drill itself was being moved. This is understandable. I do not think that it was necessary for a spotter to be employed.
11. The balance of the allegation is that no-one can enter the work area unless they are in full view of the Vermeer directional drill operator. The drill operator has to look at the controls, and is necessarily looking away from the work area and away from the drill tracker to carry out his own tasks. Further, the drill operator is some distance (in this case 40 metres) away from the work area and would not necessarily have a clear view of the fine detail of what was going on. However as the facts of this case demonstrate, the drill operator can see the drill tracker if he looks towards him. If, as I have found, the tracker should have been standing south of the exit pit during the operation of the drill string north of the exit pit, then the drill operator should have been instructed to check where the tracker was standing before further operating the drill string. If the tracker strayed into an unsafe position, the operator had two options. He could shut down the motion of the drill string or he could communicate his perception of the danger via the radio.
12. To require the operator to do this would not be onerous, and it would be a reasonably practicable measure to ensure safety. In effect, the operator would be checking that the tracker had obeyed what should have been a cardinal rule - to stand out of the danger zone while the drill string was in operation.
13. The fourth way in which the allegation is pleaded was that the defendant should have ensured that personal protective equipment including a helmet was worn by persons working in the vicinity of horizontal directional drilling operations. Both Mr Stockton and Mr Shayler said that a helmet should have been worn as a matter of standard practice. True it is that a helmet may not have prevented the tragic outcome in this case, but at least would have afforded some protection against the risk if stored energy was released. While in an ideal world the removal of the drill head would not involve the risk of being struck by a drill string subject to stored energy, at least if a helmet was worn the worker would have better prospects of survival. I find that this is a reasonable practicable precaution which should have been taken.
14. The fifth way in which the precaution is put is the pleading that the removal of the drill head should have been undertaken within the exit pit to remove the requirement for the drill head and drill string to be brought outside the exit pit. The evidence in this case establishes that the drill head could not have been removed in the exit pit. Mr Stockton and Mr Shayler both agreed that drill heads can be safely removed outside the exit pit. Vermeer, the manufacturer of the Vermeer directional drill in operation on the day, provided safety videos which showed drill heads being removed both inside and outside exit pits. The expert evidence in the case is that the drill head could have been removed safely outside the exit pit if suitable precautions were taken. Further, if for any reason the drill head and drill string were under tension in the exit pit, then to ask a worker to get into the pit to remove the drill head would have simply exposed the worker to this risk within a confined space. I am not satisfied that the fifth way in which this reasonably practicable measure was pleaded was necessary or is made out.
15. Paragraph 8(b) of the Summons pleads that the defendant should have developed, implemented and enforced a work health and safety system that prohibited the operation of the Vermeer directional drill when the drill tracker was in close proximity to the exit pit excavation or which prohibited workers entering the danger zone of operating machinery during horizontal directional drilling.
16. I find that the second way in which the measure is pleaded has been made out on the evidence. There should have been a prohibition against anyone entering the danger zone, not just of a rotating drill string, but of a drill string which might flex and strike a worker because of stored energy. The defendant's workers should simply never have been as close to the drill string as Mr Walsh was on the day. There was no evidence that workers were prohibited from being in such proximity to the danger zone, and the fact that Mr Caulfield and Mr Walsh did their task by trusting the drilled ground to retain the stored energy in the drill string was an indication that they had no proper appreciation of the risk to which Mr Walsh was being subjected.
17. The defendant should have developed, implemented and enforced a work health and safety system that prohibited Mr Walsh being in the danger zone. This would have required education about the risk of stored energy, and the appropriate way in which a drill head could be removed so that stored energy was taken out of the equation.
18. Paragraph 8(c) of the Summons pleads that the defendant should have provided clear instructions to all employees as to what steps should be undertaken, notably the cessation of all horizontal drilling operations if people come within close proximity of the drill head while in operation. This is another way of putting the reasonably practicable measure pleaded in par 8(b) of the Summons, which I have held should have been implemented. For the same reasons I find that the reasonably practicable measure pleaded in par 8(c) of the Summons should have been taken by the defendant.
19. The fourth and final reasonably practicable measure is pleaded in par 8(d) of the Summons, which says that the defendant should have ensured the task of removing the drill head from the drill string was undertaken in line with the plant manufacturer's instructions. There were no such instructions in the Vermeer Drilling Manual. I find that this particular is not made out.
20. In summary, I find that the defendant failed to comply with its duty under s 19(1) of the Act, in that it failed to take the reasonably practicable precautions pleaded in par 8(a)(i), par 8(a)(iii), par 8(a)(iv), par 8(b) and par 8(c) of the Summons.
21. I am satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty.

Consideration of Element 3 - Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury

1. The relevant question on causation is not whether the failures of the defendant were the cause of the death of Mr Walsh, but whether the act or omission of the defendant was a substantial or significant cause of the worker being exposed to the risk of injury - Bulga Underground at [127], [130].
2. That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health and safety of workers - Bulga Underground at [129-130].
3. Given my findings that the defendant should have been aware of the risk, and that simple cost-free and effective reasonably practicable means were available to it to ensure safety, I find that the breach of duty by the defendant was a substantial contributing factor to the risk.
4. I am satisfied beyond reasonable doubt that the breach of duty by the defendant exposed workers, in particular Mr Walsh, to a risk of death or serious injury.

Conclusion

1. I find that the defendant Rockfield Contracting Pty Ltd committed a Category 2 offence pursuant to s 32 of the Work Health and Safety Act 2011 (NSW) because: 1. The defendant owed Mr Walsh a health and safety duty under s 19(1) of the Act. 2. The defendant failed to comply with that duty. 3. The breach of duty by the defendant exposed Mr Walsh to a risk of death or serious injury.
2. I find the offence alleged in the Summons filed on 7 March 2018 proved beyond a reasonable doubt.
3. I will hear the parties on sentence.

Orders

1. The orders are: 1. The elements set out in the Summons filed on 7 March 2018 have been proved beyond reasonable doubt. 2. I find the defendant Rockfield Contracting Pty Ltd guilty. 3. The matter will be listed for sentence hearing on a date convenient to the parties.

Postscript Concerning Conduct of the Trial

1. I wish to express my appreciation for the way in which the trial was conducted by counsel and solicitors on both sides. The case was well prepared for both parties and was well organised, in that not a moment of court time was wasted. The conclaves held between the experts, and the short concise conclave reports, narrowed the issues considerably.

Amendments 03 March 2021 - Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2021