Andrew John McColm v Tritton Resources Pty Ltd

[2023] NSWDC 270

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Andrew John McColm v Tritton Resources Pty Ltd [2023] NSWDC 270

Hearing dates:

July 4, 5, 6, 7, 11, 12, 13, 2022 and 29 November 2022

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

(2) I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

(3)   I will list the matter for directions before me on 21 August 2023 to determine the appropriate course.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

Evidence Act 1995 (NSW)

Occupational Health and Safety Act 2000 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW)

Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW)

Work Health and Safety (Mines) Act2013 (NSW)

Work Health and Safety (Mines) Regulation 2014

Work Health and Safety Regulation 2011 (NSW)

Cases Cited:

ASIC v Rich [2005] NSWSC 152; (2005) 190 FLR 242

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 (30 March 2012)

Bulga Underground Operations v Nash [2016] NSWCCA 37

Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467

Chen v R (2018) 97 NSWLR 915

Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379

Cullen v State Rail Authority (NSW) (1989) 31 IR 207

Davies v The Queen [2019] VSCA 66

Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50

Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch’ng) [1999] NSWIRComm 341 (12 August 1999)

Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313

Edwards v National Coal Board [1949] 1 KB 704

Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267

Hamersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998)

Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119

Howard Smith and Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215

Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531

Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99

Li v The Queen (2003) 139 A Crim R 281

Makita v Sprowles (2001) 52 NSWLR 705

Marshall v Gotham [1954] AC 360

Nash v Resource Pacific Pty Ltd (No. 3) [2018] NSWSC 45

Orr v Cobar Management Pty Ltd [2019] NSWDC 796

Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634

Patrick Travel Pty Ltd v Comcare (2014] NSWCA 215

R v Australian Char Pty. Ltd. [1999] 3 V.R. 834

R v Board of Trustees of the Science Museum [1993] 1 WLR 1171

R v Butera (1987) 164 CLR 180

R v Construction Group Pty Ltd [2006] VSCA 181

R v Leung (1999) 47 NSWLR 405

R v Nelson Group Services (Maintenance) Ltd [1998] 4 ER 331

Royall v The Queen (1991) 172 CLR 378

SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792

Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6

State Rail Authority v Dawson (1990) 37 IR 110

Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252

Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21

WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248

WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166

Category:

Principal judgment

Parties:

Andrew John McColm (Prosecutor)
Tritton Resources Pty Ltd (Defendant)

Representation:

Counsel:
Mr H Dixon SC and Ms J McDonald (for the Prosecutor); then Ms W Thompson
Mr S Holt QC and Mr D Nagle (for the Defendant)

Solicitors:
Hunt & Hunt Lawyers (for the Prosecutor)
Hopgood Ganim Lawyers (for the Defendant)

File Number(s):

2020/177979

Judgment

Introduction

1. By an Amended Summons filed on 21 April 2022 the prosecutor charged Tritton Resources Pty Ltd (‘the defendant’) with a breach of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’). The Amended Summons pleaded that the defendant was a person conducting a business or undertaking at Tritton Copper Mine, Yarrandale Road, Hermidale in the state of New South Wales, who had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of workers engaged or caused to be engaged by it and/or workers whose activities in carrying out work underground in the mine operated by the defendant, including Thomas Lambert, Brett Frame, Sean Coleman, Jesse Peckham, Terry Watts, Erin Bryant, Jesse Horo, Nick Bourchier, Tyler Worland, Debra Riley, Rick Fitzsimmons, Jon Gosch, Nerendra Pal, Jake Cromack, Peter Allen, Shaun Johnson, Brad Lane, Andrew William, Brendon Helmore, Matt Robba and Adam Bartimore (‘identified workers’) while they were at work in the defendant’s business or undertaking, contrary to s 19 of the WHS Act and in contravention of s 33 of the WHS Act.

2. The defendant entered a plea of not guilty and the trial commenced before me on 4 July 2022, and concluded over various days until 29 November 2022.

3. The Prosecutor’s Tender Bundle (‘PTB’) was 6 lever-arch folders of documents, but documents that were tendered from those volumes were marked as exhibits with individual letters and numbers. The prosecutor called a number of witnesses some of which gave evidence largely by adopting detailed statements that had previously been made. During the course of the oral evidence and the tender of documents, objections were noted and the evidence was recorded, with an agreement that objections would be ventilated at the conclusion of the oral evidence adduced by the prosecutor.

4. The defendant is charged with a breach of s 33 of the WHS Act in respect of a failure to comply with a duty under s 19(1) of the WHS Act between 15 June 2018 and 23 June 2018.

5. As at June 2018, the applicable legislation was:

1. The WHS Act;

2. Work Health and Safety Regulation 2011 (NSW) (‘WHS Reg’);

3. Work Health and Safety (Mines) Act 2013 (NSW) (‘Mines Act’); and

4. Work Health and Safety (Mines) Regulation 2014 (NSW) (‘Mines Reg’).

6. Section 33 of the WHS Act provides as follows:

‘33   Failure to comply with health and safety duty – Category 3

A person commits a Category 3 offence if –   

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty.

Maximum penalty –

(a) in the case of an offence committed by an individual (other than a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) – 575 penalty units, or

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – 1,155 penalty units, or

(c) in the case of an offence committed by a body corporate – 5,770 penalty units.’

7. Notices were issued pursuant to s 155 of the WHS Act to the defendant and other parties.

Documentary Evidence

8. The prosecutor tendered an Agreed Statement of Facts (‘ASOF’) (exhibit A) and a PTB out of which many documents, including photos, were tendered and given individual exhibit letters and numbers. The defendant tendered a colour photograph of the exhaust flex hose, which became exhibit 1.

9. The ASOF can be summarised as follows:

1. The prosecutor is a government official (investigator) appointed under s 18(2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) (‘WHSMP Act’) and;

1. is by virtue of s 18(8) of the WHSMP Act, an inspector for the purposes of the Act; and

2. has written authorisation of the Regulator under Schedule 2 of the WHS Act and is thereby authorised under s 230(1)(b) of the WHS Act to bring these proceedings.

2. The defendant was the operator of the Tritton Copper Mine (‘the Mine’) within the meaning of s 7A of the WHSMPS Act and was a person conducting a business or undertaking within the meaning of that term in the WHS Act.

3. The defendant engaged in the extraction of copper and other materials from underground workings at the Mine and was engaged in mining activities at the Mine within the meaning of s 7 of the WHSMPS Act.

4. The Mine was a (‘workplace’) within the meaning of s 8 of the WHS Act.

5. The defendant engaged or caused to be engaged Mine Workers including the Identified Workers as workers to work at the Mine, including underground and/or influenced or directed them in their activities in carrying out the work at the Mine.

6. During the period 15 June 2018 to 23 June 2018, the defendant engaged or caused to be engaged and/or influenced or directed approximately 412 Mine Workers, 367 as direct employees and around 45 as contractors, some of whom worked underground in the Mine (‘Affected Workers’), including the Identified Workers. The names of the Identified Workers are at [2(f)] of the ASOF. The names of the Affected Workers are at [2(g)] of the ASOF.

10. Aeris Resources Limited was the parent company of the defendant.

Identified Workers

11. On 23 June 2018 Thomas Lambert was:

1. employed by the defendant as a casual truck driver;

2. a worker within the meaning of the WHS Act; and

3. engaged in work associated with the Mine’s operation and under the direction of the defendant.

12. On 23 June 2018 Brett Frame, Sean Coleman, Jesse Peckham, Terry Watts, Erin Bryant, Jesse Horo, Nick Bourchier, Tyler Worland, Debra Riley, Rick Fitzsimmons, Jon Gosch, Nerendra Pal, Jake Cromack, Peter Allen, Shaun Johnson, Brad Lane, and Andrew Williams were:

1. employed by the defendant;

2. workers within the meaning of s 7 of the WHS Act; and

3. engaged in work associated with the Mine’s operations under the direction of the defendant.

13. On 23 June 2018 Brendon Helmore was:

1. a production driller from MSD Mining Solutions, an organisation which had been engaged by the defendant;

2. a worker within the meaning of s 7 of the WHS Act; and

3. engaged in work associated with the Mine’s operations and under the direction of the defendant.

14. On 23 June 2018 Matt Robba and Adam Baltimore were:

1. diamond drillers from DRC Drilling, an organisation which had been engaged by the defendant;

2. workers within the meaning of s 7 of the WHS Act; and

3. engaged in work associated with the Mine’s operations under the direction of the defendant.

The Mine

15. The Mine is located on Yarrandale Road, Hermidale, NSW, approximately 42km west of Nyngan, off the Barrier Highway on Mining Lease ML 1544. It operates 24 hours a day.

16. Material is mined underground at different levels descending further from the surface, which is then loaded onto haul trucks which use the main decline to haul the material to the surface for processing. The Main Decline is a single lane roadway used by vehicles to enter and exit the underground workings (‘Main Decline’).

17. The Main Decline is the only vehicular access into or out of the Mine.

Haul Truck UTH16

18. The defendant was the lessee of a haul truck manufactured by Sandvik Mining and Construction Australia Pty Ltd (‘Sandvik’), model TH633, which was identified at the Mine as UTH16, (‘UTH16’) pursuant to a Finance Lease Agreement dated 9 December 2015 and has the day-to-day control of UTH16 including its storage, maintenance and operation. UTH16 was delivered new to the Mine on 5 January 2016 and was used to carry out mined material at the Mine workings.

19. Sandvik had personnel at the Mine. These personnel provided ongoing technical advice, recommendations and training to the defendant in relation to their equipment and mechanical support for the Sandvik plant, including UTH16 and performed work on the Sandvik plant.

20. The TH644 trucks at the Mine, including UTH16, were serviced every 250 hours, which equated to approximately every two weeks.

21. On 15 June 2018, the defendant became aware of a hole in the exhaust flex pipe of the UTH16, between the engine and diesel particulate filter (‘DPF’), and a replacement part was ordered by the defendant, but UTH16 was not taken out of service.

22. On 20 June 2018, Joshua New of Sandvik advised the defendant’s maintenance supervisor, Blake Hattch, to take the UTH16 out of service until the exhaust flex pipe was replaced, however, UTH16 was again returned to service.

23. The replacement exhaust flex pipe arrived at the Mine on 22 June 2018 at around 11.34pm. UTH16 was not called in to the workshop for repair at that time.

The events on 23 June 2018

24. Between 6:00am and 7:00am on 23 June 2018, prior to UTH16 going back underground for the day, the Maintenance Supervisor, Blake Hattch, was again made aware of the hole in the exhaust flex by a fitter, James Morley, however, UTH16 was not taken out of service.

25. At around 11.45am on 23 June 2018 Mr Hattch placed a second order for a replacement exhaust flex pipe.

26. At approximately 7:00am, one of the Identified Workers, Thomas Lambert, commenced his shift at the Mine. His duties that day were to drive UTH16 down the Main Decline, get UTH16 loaded with mined material and return to the surface via the Main Decline for the last time that day. He had dumped three or four loads on 23 June 2018 before the incident.

27. After re-fuelling UTH16, Mr Lambert entered the entrance to the Main Decline and commenced his journey down to the Mine workings.

28. At approximately 4:35pm the Identified Workers were working underground at the Mine, and whilst between level 4365 and 4345 of the Mine, UTH16 caught fire, approximately 900 metres below ground and 6.3km from the Mine entrance.

29. It is an Agreed Fact that the cause of the fire is unknown.

30. Upon noticing the fire, Thomas Lambert drove the truck a short distance past the fuel bay located at level 4345, turned the engine of UTH16 off via the e-stop, activated the fire suppression system, called in the emergency on the Mine radio and evacuated to the rear of UTH16.

31. After observing that the fire appeared to be extinguished, Thomas Lambert re-entered the cabin of UTH16 to make a further radio call when he noticed the flames reappear.

32. Thomas Lambert evacuated himself to the crib (meal) room on the 4380 level (higher than the location of UTH16) and ensured via radio that his initial call had been received.

33. At the time UTH16 caught fire, all the Identified Workers, with the exception of Thomas Lambert and Brett Frame, were located below the location of UTH16 and so were unable to exit the Mine. They are identified by name at 29(b) of the ASOF.

34. As a result of the fire, copious amounts of smoke and gases were drawn into the lower sections of the mine and the Identified Workers, or some of them, were exposed to the smoke and gases to some degree.

35. The Identified Workers, with the exception of Thomas Lambert and Brett Frame, self-evacuated to refuge chambers installed in the lower sections of the mine.

36. The refuge chambers were connected to communications and the Mine’s air supply. The communications were delivered via cables running along the roof of the Main Decline. The fire burnt through the cables with the result that the communications were lost at around 5:05pm, after all the Identified Workers had arrived safely at the chambers.

37. At around 7:00pm the main air supply to the Mine was shut off to assist in efforts to extinguish the fire, with the result that the Workers in the refuge chambers had to rely on the chambers’ independent air supplies for the majority of their confinement.

38. The fire was extinguished at about 10:48pm.

39. The Identified Workers were evacuated from the mine in a staged manner with the last of the Workers evacuated from the Mine at or around 1:00am on 24 June 2018.

40. Thomas Lambert received a right shoulder strain when exiting UTH16, however, a MRI indicated that there was no visible damage.

41. Jesse Horro, who was an occupant of the 4150 refuge chamber, was treated for stress-related symptoms, which were reported on 6 July 2018 and he was cleared for pre-injury duties on 11 July 2018.

42. The other Identified Workers did not report any other injuries.

43. During the period 15 June 2018 to 23 June 2018, UTH16 took 55 loads of material out of the Mine. The TH663 trucks at the Mine, including UTH16, were serviced every 250 hours, which equated to approximately every two weeks.

The Duty

44. The defendant had a duty under s 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of workers, in particular the Affected Workers, including the Identified Workers, while they were undertaking work underground at the Mine.

The Risks

45. As a result of the defendant’s acts or omissions pleaded in paragraph 30 of Annexure A to the Summons, Affected Workers, including the Identified Workers, were exposed to risks to their health and safety from UTH16 catching fire while it was travelling the Main Decline, due to the emission of hot, unfiltered diesel exhaust from a hole in the exhaust flex pipe of UTH16, including:

a.   in the case of any driver of the UTH16 or person in close proximity to the UTH16 when it caught fire, including Thomas Lambert:

1. being burned by flames;

2. being struck by debris caused by the fire;

3. injury through collision; and/or

4. injury while escaping the immediate vicinity of the fire; and

b.   in the case of all Affected Workers, including Thomas Lambert and the Identified Workers, injury, illness or death caused by:

1. inhalation of hot and/or toxic gases, asphyxiation and burns;

2. explosion; and/or

3. the psychological trauma of being trapped or confined underground.

Particulars of the acts or omissions in failing, so far as is reasonably practicable, to eliminate or otherwise minimise the Risks (paragraph 31 of Annexure A to the Summons)

46. The defendant failed to ensure, so far as was reasonably practicable, the health and safety of workers, in particular the Affected Workers, including the Identified Workers, by failing to:

1. provide and maintain a work environment without risks to health and safety as required by s 19(3)(a) of the WHS Act; and

2. provide and maintain safe plant as required by s 19(3)(b) of the WHS Act, and in particular by failing to take one or more of the following reasonably practicable measures to eliminate, or alternatively, to minimise the Risks:

1. taking UTH16 out of service on or about 15 June 2018 and leaving it out of service until the hole in the exhaust flex pipe was repaired; or

2. in the alternative to (a):

1. conducting an assessment of the risk of allowing the UTH16 to continue in service with a hole in its exhaust flex pipe, when it was discovered on or about 15 June 2018, or at any time after that day, and on every day that UTH16 was put into service thereafter, up to and including 23 June 2018; and/or

2. taking UTH16 out of service on or about:

1. (A)   20 June 2018; or

2. (B)   22 June 2018, when the replacement exhaust flex pipe arrived at the Mine; or

3. (C)   the morning of 23 June 2018; and/or

3. checking for exhaust system leaks as part of the daily inspection of UTH16; and/or

4. providing copies of and/or training workers involved in the maintenance of the UTH16, in particular the maintenance supervisor, Blake Hattch, in regard to, the Mine’s defect management plan, as embodied in ‘Standard of Engineering Practice, Mechanical, Defect Management, TRL-ESC-SEP-MEC-04’; and/or

5. developing, implementing and enforcing an adequate work procedure to ensure that parts acquired to repair defects or to address hazards in the TH633 fleet, and in particular the UTH16 were fitted to the required vehicle, including UTH16, as soon as practicable to the time of receipt of the replacement part.

47. As a result of the defendant’s failure to comply with its duty, the Affected Workers, including the Identified Workers, placed a risk to the health and safety of the Affected Workers.

The Relevant Law

48. The prosecution bears the onus of proof on all matters, and the standard of proof is beyond reasonable doubt. Proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the Crown case.

48. The offence is one of strict liability: s 12A of the WHS Act.

49. 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 an employee, a contractor or a sub-contractor or an employee of a contractor or subcontractor: s 7 of the WHS Act.

50. The duty provided for by the WHS Act is not transferrable: s 14 of the WHS Act. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the standard required: s 16 of the WHS Act.

51. If more than one person has a duty in relation to the same matter under the Act, each duty holder must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other duty holders in relation to the same matter: s 46 of the WHS Act.

52. A duty holder must have a structured and systematic approach to risk management: Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 (‘Inspector Ching’) at [32] per Marks J.

53. It is not disputed that the defendant was a PCBU pursuant to s 5 of the WHS Act. As such the defendant had a duty to ‘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’: s19(2) of the WHS Act.

54. The PCBU must, so far as is reasonably practicable, consult with the workers who are to carry out work for the business or who are likely to be affected by a health or safety matter: s 47 of the WHS Act. Consultation includes sharing relevant information with the workers, giving them a reasonable opportunity to express their views and to contribute to the decision-making process, taking into account the workers’ views and advising them of the outcome of the consultation process in a timely manner: s 48 of the WHS Act. Consultation is required, inter alia, when identifying hazards and assessing risks to health and safety from the work and making decisions about ways to eliminate or minimise those risks: s 49 of the WHS Act.

55. The defendant disputes that it failed to comply with its health and safety duty, and that the failure(s) put persons, and in particular the identified workers, to a risk of death and serious injury.

56. The content of the duty is contained within s 19 of the WHS Act, as follows:

‘Primary Duty of Care

1. (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.

1. 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.

2. 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

(b)   the provision and maintenance of safe plant and structures, 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

(e)   the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, 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 a 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.’

58. The issue of breach of a duty under the WHS Act is to be addressed prospectively, and must not by engaging in a ‘hindsight’ analysis of whether the risk of injury could have been reduces or eliminated: Slivak v Lurgi (Australia) Pty Ltd [2001] (‘Slivak’) HCA 6; 205 CLR 304; 177 ALR 585; 75 ALJR 481 (15 February 2001) at [53] per Gaudron J; Edwards v National Coal Board [1949] 1 KB 704; Marshall v Gotham [1954] AC 360 per Lord Oaksey.

59. The analysis of whether the defendant complied with its duty to ensure safety is to be determined by looking the facts of the case as practical people would look at them, not with the benefit of hindsight: Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 Harper J at 123-124; R. v. Australian Char Pty. Ltd. [1999] 3 V.R. 834 at 847 per Phillips, C.J., Smith and Ashley, JJ).

60. The test is objective and all relevant circumstances must be taken into account, including the matters in s 18 of the WHS Act.

61. In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 (30 March 2012) (‘Baiada’) the High Court said at [15] in respect of the equivalent provision in the Victorian legislation:

‘The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.’ (my emphasis)

62. And at [38]:

‘The other matters to which the majority pointed in their reasons went, as they said, to whether it was practicable for Baiada to take the steps identified. But for the reasons given earlier, demonstration that some step could have been taken does not, without more, demonstrate that to fail to take that step was a breach of the obligation so far as was reasonably practicable to provide and maintain a safe working environment. The circumstances to which the majority pointed did not require the conclusion that not taking the identified steps was a breach ofBaiada's duty.’

63. The mere occurrence of an accident resulting in injury to a worker is not sufficient in itself to prove the commission of an offence under s 32 of the WHS Act. Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ching) [1999] NSWIRComm 341 (12 August 1999) citing Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209 and State Rail Authority v Dawson (1990) 37 IR 110 at 120-121.

64. It is necessary for the prosecutor to establish a causal connection between the failure/conduct of the duty holder and the worker (person) being exposed to the risk at the time the work was being performed. In SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792 (‘Grasso’) the NSW Court of Criminal Appeal held that the question of causation was a ‘backward-looking attribution of responsibility for breach’ in a criminal context and was not a ‘theoretical exercise’ (see paragraphs [230]–[235] and [239]–[235]).

65. The principles applicable to prosecution of offences under the Act have been summarised in recent decisions including Orr v Cobar Management Pty Ltd [2019] NSWDC 796 (‘Orr v Cobar Management’); Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 (‘Orr v Hunter Quarries’) and Grasso.

66. It is incumbent upon the prosecution to prove that the act or omission of the defendant was a significant or substantial cause of a person being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 (‘Bulga’) at [130] per Bathurst CJ, Hidden and Davies JJ. The question, however, is one 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.

67. The requirement to ‘ensure’ means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 (‘Carrington Slipways’) at 470.

68. The safety of a worker or person cannot be ensured if a risk to their health and safety exists. The simple existence of the risk constitutes a breach of s 19 of the WHS Act. It matters not that there was an accident or that a person was injured: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR (‘Kirk Group Holdings’) 531 at [13] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.

69. 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.

70. The word ‘risk’ is not defined in the WHS Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 (‘R v Board of Trustees of the Science Museum’) and Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 (‘Theiss’) at [67] per Spigelman CJ.

71. Reasonably practicable is defined in s 18 of the WHS Act. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak.

72. The phrase ‘exposed to risks’ contained in s 8(2) Occupational Health and Safety Act 2000 (NSW) (‘OH&S Act’) was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Theiss.

73. 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 (‘Genner Constructions’) at [68].

74. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken: Baiada. Simply demonstrating that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty: Baiada at [15] and [38] per French CJ, Gummow, Hayne, Heydon and Crennan JJ.

75. In WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 (‘Inspector Twynam-Perkins’) at 257, Bauer J stated as follows:

‘The very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.’

76. The question of reasonable practicality is also a question of fact, dependant on the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer’s undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 ER 331 (‘R v Nelson Group’) at 351.

77. It is accepted law that one of the matters that PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 (‘R v Commercial Industrial Construction’) at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].

78. In Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99 (‘Kirwin’) and Nash v Resource Pacific Pty Ltd (No. 3) [2018] NSWSC 45 (‘Nash’) at [423]-[429], it was held that the use of an independent contractor with specialist skills or knowledge is a relevant consideration. If reliance is placed on an independent specialist contractor to perform a task that would demonstrably be within the independent contractor’s area of expertise, it would not ordinarily be practicable for the contractor to do more, provided the task undertaken reasonably appeared to have been carefully and safely performed by the independent contractor: Hamersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) (‘Hamersley Iron’) per Steytler J.

79. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the exposure to the risk of injury: Bulga at [127]. Further, the relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga at [130].

80. The application of common sense must be featured in the determination of the question of causation, bearing in mind that the purpose of the enquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378 (‘Royall’).

81. Section 275 of the WHS Act provides that an approved code of practice is admissible in proceedings for an offence against the WHS Act as evidence of whether a duty under the Act has been complied with. The Court may have regard to the code as evidence of what was known about a risk, or the measures available to control a risk, and they may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.

SUMMARY OF THE EVIDENCE FROM WITNESSES CALLED AT TRIAL

Christopher Lloyd Baaten (unemployed)

82. Mr Baaten was called and gave evidence and was a credible witness. He stated that he was given a light duties role that prevented him from working near dusty environment or underground at Tritton (T157:3-14). Mr Baaten confirmed that he did not perform any major maintenance work on the trucks, such as diagnostic safety checks, since moving to light duties (T157:12-17). He stated that he did not diagnose the exhaust flex pipe issue on UTH16 and that he was not present when it was diagnosed either (T157:22-27).

83. Mr Baaten stated that he was located in the maintenance cleaner office, which was approximately 100m away from the workshop (T157:29-33). He agreed that his computer had access to the internet and M-drive, which contained relevant policies, procedures, and bulletins (T157:33-50; T158:1-5).

84. Mr Baaten agreed that he entered all jobs into the SAP system as a ‘001 breakdown repair’ (T158:10-13) and confirmed he was not told that UTH16 had broken down or to hotshot the order on 15 June 2018 (T158:15-20). Mr Baaten’s evidence was that he needed to receive the relevant part number and description off the scope from the fitters or product specialist to order the correct part on the SAP system (T158:27-42). He stated that scoping included defect identification of a truck, filling out a description of what work was required, the part number, and how many hours were required to fix it (T158:44-50).

85. Mr Baaten agreed that there was a culture of speaking up about safety problems at the Tritton mine, and that he was encouraged to talk up when he saw a safety issue (T159:1-13).

Joshua Leslie New (previous Sandvik product support advisor to Tritton mine)

86. Mr New gave evidence as an expert witness and adopted the code for the purposes of the evidence that he gave (T186:18-21). I accept him to be a credible witness.

87. Mr New stated that he has qualifications as an auto electrician, as well as in refrigeration and gas handling (T175:35-36; T176:44-46; T250:5-16), however, he confirmed that he has no formal training or qualifications in relation to mechanical diesel fitting work (T175:38-40; T243:9-14; T244:29-42) and that much of his knowledge in this area comes from life experience, time on the job and assisting mechanics in their work (T176:40-48).

88. Mr New gave evidence that he was employed by WesTrac as a field service auto electrician (T175:23-33), and that he was previously employed by GB Auto Electrics from 2011 to 2014 as an auto electrician, and then by Sandvik as a service technician from mid-2014 to August 2020 (T17542-45; T177:15-19). Mr New stated that he has approximately eleven years of experience working in underground mines, and that he has conducted auto electrical, mechanical, diagnosing, and rebuilding work throughout this time (T181:30-37).

89. Mr New stated that approximately 20% of his workload at GB Auto Electrics was mechanical, which included installing or removing engines or their components, helping fitters or mechanics, and rebuilding underground mining equipment such as haul trucks or loaders at the Ridgeway Gold Mine (T176:9-28; T177:1-13; T250-47-48; T251:1-3). He said that at his current job with WesTrac, he mostly conducted electrical work but also performed mechanical jobs, such as 250-hour services, assisting fitters, and troubleshooting mining equipment (T179:29-48; T180:1-10; T181:10-24). He stated that most of the work was conducted on farming property with diesel equipment, while the rest of the work was conducted in underground mine sites (T180:12-50; T181:3-8).

90. Mr New gave evidence that he was working at the Tritton mine from mid-2014 to August 2020 (T177:21-23; T179:5-16; T251:5-6, 37-38), and that he was appointed as a product support advisor (‘PSA’) in January 2016 (T188:48-50; T189:1-7; T251:8-10, 24-32). He stated that as a PSA, he provided supervisors, mechanics, and fitters with advice and information on repairing, servicing, and maintaining Sandvik equipment, plant, or vehicles (T189:15-39; T252:47-49). This included interpreting bulletins, servicing, maintaining, diagnosing, fault-finding, and rebuilding machines, where approximately 40% of his time was spent on the floor with Tritton employees (T190:11-25; T251:15-22).

91. Mr New confirmed that he worked with the maintenance team and reported to the maintenance supervisor, and that he had a direct line to the mine’s superintendent and could raise issues of priority with them if time permitted (T253:13-30). He also agreed that he had direct relationships with planners, maintenance supervisors, fitters, and diesel mechanics at Tritton (T253:35-48). He stated that he would touch base and regularly report to his direct line supervisor at Sandvik about issues at the mine (T254:1-24). He agreed that there was a monthly reliability meeting between Sandvik and Tritton to discuss issues with Sandvik vehicles or raise concerns about how the plant was being run, such as safety issues or concerns about vehicles being put into service when they should not be (T254:37-50; T255:1-6).

92. Mr New stated that the bulk of his workload at the Tritton mine involved the TH663 truck with a diesel Cummins engine, including installing a complete exhaust systems three times, periodic involvement in daily and 250-hour inspections, and repairing faults in relation to exhaust or fuel systems, engines, transmissions, and hydraulics (T182:5-24, 34-50; T183:10-19). He said that in his approximate twelve years of experience working on trucks like TH663, about 60-70% of that time was spent working specifically on TH663 trucks (T183:26-36). Mr New confirmed that he was involved in a partial rebuild of a TH663 truck where the diesel particulate filter (‘DPF’) was replaced (T184:6-28).

86. Mr New confirmed that Tritton mechanics and diesel fitters conducted the daily inspections and that he was involved insofar as he watched them do it (T255:15-27). He agreed that truck maintenance was ongoing and constant, with comprehensive 250-hour and 1000-hour inspections, which were conducted with check sheets developed cooperatively by Sandvik and Tritton and daily inspection sheets branded and developed by Aeris and Sandvik (T305:39-47; T256:1-37). Mr New confirmed that mechanics and diesel fitters regularly made judgment calls regarding issues, such as ordering parts or taking vehicles out of service, sometimes with or without Mr New’s input (T257:3-22). Mr New also agreed that he attended most prestart meetings, which was an opportunity to talk about any plant issues, including any significant concerns or issues, such as how trucks were operating or whether something should be taken out of service (T255:29-48).

87. Mr New gave evidence that he received a specialised three-day training course from Sandvik, in or around the year of 2016 or 2017, about the functionalities of the engine and common failures of that equipment (T184:30-42; T185:4-9). He stated that it was mechanical-focused training that identified common equipment failures, such as failing thermostats, machines unexpectedly stopping, and how to test and diagnose issues quickly (T185:11-22).

88. Mr New agreed that he has experience in the UTH16 truck’s exhaust system (T191:34-37), and that UTH16 was fully rebuilt in Sandvik’s Orange facility in November 2017 but that he was not involved in this rebuild (T259:28-41). Mr New recalled inspecting TH663 trucks and finding air leaks in the flex pipe several times, and he stated that if he became aware of an exhaust system leak, he advised the supervisor to tag and remove the truck from service (T192:1-3, 21-25; T194:41-49). He said that he did not recall whether this happened to the UTH16 truck specifically (T192:5-8).

89. Mr New confirmed that after becoming aware of the leaks, which had previously occurred approximately five times (T195), he would recommend to the supervisor to stand the truck down, order the part, and repair the truck before it went back into service (T195:1-10, 33-36). He stated that he recommended this because a leaking exhaust creates a potential fire risk, it emits unfiltered toxic gas from the engine, and it expels these gases into the engine compartment (T195:38-45). Mr New also said that the temperature of the exhaust gas is more than 600 degrees under loaded conditions, which creates a fire risk because the gas enters the engine compartment instead of getting expelled out of the tailpipe (T196:17-39).

90. Mr New confirmed that he accessed and interpreted the service, repair, maintenance, parts, and operator’s manuals as part of his work (T187:15-26; T188:40-42). He identified and explained various parts of the exhaust system, marked as items one through six in Diagram 8.5 (T198:27-37). Mr New marked Photo 12 of exhibit C while describing each item’s role in a functioning system (T199:41-T210:8; T214:11-T215:49), which became exhibit QQQ. Mr New confirmed the part number and mechanisms to order flex pipe parts, and that the parts’ job card (exhibit DD) has a precise stock and description manufacture number for the exhaust flex pipe (T212:22-50). He also clarified that the exhaust pipe or pipe exhaust refers to the tailpipe (T213:47-49; T214:3-7).

91. On cross-examination, Mr New confirmed that UTH16 had a fan sucking air out of the engine bay to keep its temperature down at forces strong enough to blow a hard hat off (T298:21-48; T299:8-11). He identified nearby items, including the radiator, coolant, and heat shield above the turbo (T300:21-43; T301:41-42). Mr New agreed that a large amount of air was being pulled into the engine bay and dragged out via the fan, that the fan ran faster at hotter temperatures, and that the hot air was dragged through into the coolant (T299:27-29, 45-49, T300:1-6; T302:9-14). He also confirmed that the heat shield was intended to trap heat in a small area and the attached hose was designed to pull out heat more than 600 degrees Celsius (T304:44-49; T305:1-16).

92. Mr New agreed that he performed stall testing to identify how much life was left in the DPF of vehicles (T216:1-3; 13-16). He stated that this job did not have a service sheet, and that it was done periodically, having performed it himself on average three or four times a month (T216:24-37; T221:13-17). Mr New said that the DPF control unit included a monitoring system and panel box with an LCD screen that used two sensors for temperature and pressure to scroll through pressure and temperature readouts of the flex pipe during the test at five second intervals and collect data (T217:2-9, 25-50; T218:6-41; T220:43-46). He stated that he observed temperatures ranging from 100 to 650 degrees Celsius during these tests, where he would increase the throttle, RPM, and loading to generate heat and boost pressure (T219:16-23, 42-49; T220:39-41).

93. Mr New confirmed that a high pressure reading indicated that the DPF was near its service life (T220:48-49), and that Sandvik recommended changing the DPF when the pressure was near 100 millibar (T221:6-11). He stated that data was stored in panel box five and required a data retrieval software to download the log and see it on a graph screen (T221:38-40; T222:3-6, 18-23). Mr New said that if there was not much life left in the DPF, he would speak to the crew supervisor as to whether a scope plan was needed to schedule a service to change the DPF for a new one (T216:39-43).

94. Mr New gave evidence that he did not have records of the stall testing process and relied wholly on his memory of the outputs (T294:28-36). He agreed that he made a statement previously that he observed temperatures between 350 and 600 degrees Celsius (T296:7-9). When asked about discrepancies in his evidence, Mr New stated that while the temperature ranged from 100 to 680 degrees Celsius, he was interested in temperatures at a higher range because a higher back pressure and temperature indicated less life in the DPF, and stall testing required the exhaust temperature to get up to 350 degrees (T296:24-35; T325:50; T326:1-20). He agreed that he had not been trained in the DPF sensor system or involved in its design (T297:9-13).

95. Mr New agreed that the vehicles had multiple sensors measuring pressure and temperature throughout various parts of the engine not limited to the DPF, such as coolant temperature sensors in the engine block that could be monitored and viewed inside the vehicle (T258:29-47; T259:1-9). He confirmed that he did not know of any alarms in respect of the flex hose’s operation (T320:5-6). Mr New agreed that certain items had alarms to indicate issues (T258:49-50), but that not all those sensors were monitored by the system to produce an alert when certain conditions were met (T319:41-45).

96. Mr New confirmed that vehicles had a fire suppression system, which operated automatically or manually (T303:9-14). He agreed that the hose was designed to physically fail and automatically release fire suppression materials from the nozzle at 150 degrees Celsius (T303:33-50; T3041-10). He confirmed that he was not aware of any problems with the fire suppression at the time of the incident, and that the system’s failure to automatically activate could have indicated that the temperature was not in the vicinity of a specific hose (T304:12-19).

97. When asked about the events in June 2018, Mr New stated that he was working as a PSA in the Tritton mine and that he had worked on truck UTH16 (T226:46-50; T227:1-3). He said that he arrived at the mine on 20 June 2018 and spoke to Mr Blaine Foster (‘Mr Foster’), his cross-shift Sandvik PSA, who had repaired a retarder issue and returned from a test drive of UTH16 before going on another test drive with Mr New (T227:30-45). Mr New said that he noticed excessive exhaust noise during this test drive, which indicated an issue or possible hole in the exhaust system (T228:3-8; T260:9-16; T320:25-42). He stated that he told Mr Foster that it sounded like there was an exhaust leak and asked whether Mr Foster had investigated it, to which Mr Foster replied that the exhaust flex was leaking and that he had scoped the part for replacement (T228:13-23; T267:19-30). Mr New agreed in cross-examination that he responded to this with something like, ‘no problem’ (T279:45-50; T280:1-4).

98. Mr New agreed under cross-examination that, two months after the incident, he did not mention to the SafeWork investigator that he had heard the exhaust noise on 20 June 2018 (T272:9-29; T273:11-28). When it was put to Mr New that he mixed things up after the incident, he said that it was possible but also that he had heard excessive exhaust noise when he test drove UTH16 on 20 June 2018 (T274:1-10). Mr New stated that he had not known that Mr Foster scoped the leaking exhaust on 20 June 2018 and agreed that his statement of August 2021 did not reflect this (T267:16-27; T275:19-26; T276:28-33).

99. Mr New stated that he did not inspect UTH16’s engine bay on 20 June 2018 (T228:28-29; T236:1-4), or on the following days before the fire (T279:15-32), but that he would have looked for discolouration, cracking, or a build-up of black soot to indicate that the exhaust was leaking (T236:6-8). He said that he would not have used his hands because the excessive heat coming out of the crack in the exhaust would have burnt his skin (T236:10-17). In re-examination, Mr New stated that he did not inspect the exhaust flex because Aeris personnel had it under control, as they opened a job for the ordered part to be replaced, and that he did not have the power to do anything more than park up the truck (T322:17-23).

100. Mr New gave evidence that he told a fitter about the UTH16 exhaust leak and asked them to inspect, confirm, and let Mr Hattch know about it (T228:38-41). On cross-examination, Mr New agreed that he asked the fitter to do this to determine whether UTH16 should return to service but disagreed that it would be okay to put the truck back in service if the hole was on the smaller end of the spectrum (T281:14-22). Mr New stated that it was important for the fitter to confirm the existence and location of a leak before deciding to take the truck out of service but agreed in cross-examination that knowing the size and location of the hole was relevant in making this decision (T281:28-39). In re-examination, Mr New said that any vehicle with an issue like an exhaust leak must be stood down, and that a hole in the exhaust is a problem regardless of its size because it still leaks unfiltered gases (T324:1-12).

101. Mr New said that later on the day of 20 June 2018, he asked Mr Hattch about UTH16’s exhaust flex and Mr Hattch replied that it was not that bad and that the truck would be sent back to work (T228:43-48; T229:2-3). Mr New stated that he advised Mr Hattch to park the truck up (T229:2-3; T260:22-24). Mr New confirmed that he did not think that the issue could be managed except by parking up the truck and said that, as a PSA, he had no authority to deem it out of service (T229:5-19).

102. Mr New gave evidence that, sometime between 20 and 23 June 2018, he and a planner, Mr Nick Simpson (‘Mr Simpson’), found a job on the SAP system to replace UTH16’s flex pipe, which indicated burnt wiring to the DPF monitoring system (T229:21-28). Mr New confirmed that he recognised Exhibit ZZZ, having seen its contents on a screen with Mr Simpson (T229:42-46; T230:1-21).

103. Mr New stated that he approached Mr Hattch after viewing the screen, who informed him that UTH16’s exhaust sensor wiring needed repairing because it was scorched or singed (T231:1-6). However, in cross-examination, Mr New disagreed that he had suggested that the SAP order specified the burnt wiring (T283:24-47). Mr New stated that he asked whether UTH16 should work in that condition, and that Mr Hattch replied that it was “not that bad” and that UTH16 would be sent to work (T231:8-17). In further cross-examination, Mr New agreed that previously, two months after the incident and in August 2021, he could not recall how Mr Hattch had responded when he suggested to him that UTH16 should not go to work (T287:12-19; T288:7-17).

104. Mr New agreed that this second conversation with Mr Hattch happened after he saw the screen, but that he was not sure precisely when between 20 and 23 June 2018 he saw the screen (T260:32-35, 48-50). He said that he believed that he viewed the screen around midday of 23 June 2018 and that he did not recall these details during his interview two months after the incident because the SAP scope was not produced until the morning of 23 June 2018 (T271:1-21, 38-40). Mr New confirmed that his memory was based on seeing the document in question (T261:23-36; T282:30-34).

105. Mr New agreed in cross-examination that he recalled, by reconstruction, telling Mr Hattch to park up UTH16 because of safety and fire hazard issues on 23 June 2018, but before the fire had occurred (T262:1-20). Mr New agreed that he did not include this recommendation in his statement of 25 June 2018 because he understood that the trucks were owned by Tritton and that he would be, and had been, told that it was none of his business if he suggested this and that Tritton would run the vehicles if they wanted to (T263:22-40; T267:46-48). When pressed, Mr New confirmed that he had previously identified exhaust pipe leaks and advised that trucks be taken out of service, and that while his advice was sometimes followed, Tritton’s maintenance staff made their own judgment calls (T268:13-44).

106. Mr New confirmed that he did not escalate his concerns about UTH16 to anyone from Sandvik between 20 and 23 June 2018 (T288:41-43). He agreed that he recalled speaking to Mr Foster on the phone after seeing the SAP order on 23 June 2018, but not what they spoke about (T289:28-48; T290:9-30). When pressed, Mr New agreed that his memory of speaking with Mr Foster about his concerns for UTH16 might have been wrong because he may have recalled a different conversation that they had before the SAP order was produced (T290:39-50; T291:1).

107. Mr New confirmed that Sandvik issued safety bulletins that were relevant to the Tritton fleet (T231:45-50; T232:1-3) and that his role was to communicate and advise on the warranty or informative documents to Tritton (T232:13-17; T291:47-49). He agreed that issues or hazards would be identified in the bulletins, which could arise in response to specific incidents that had occurred and could require immediate action to that urgent and known risk (T291:21-41; T292:13-16). Mr New confirmed that bulletins would usually be scheduled for the next service and agreed that Sandvik felt that it was their responsibility to ensure that the bulletins were implemented (T292:4-11).

108. Mr New agreed that he recognised pages 429 and 430 of Exhibit VV, Safety Bulletin 2018-23 of 12 April 2018 (T232:31-39), from when he worked at the Tritton mine (T232:41-43). Mr New stated that he organised to have it put in a schedule, and to have the document processed on all trucks (T232:45-50). Mr New confirmed that he worked on TH663 trucks in relation to this bulletin but could not recall if he worked specifically on UTH16 (T233:15-29). He stated that he inspected the dust extraction pipe underneath the air filter intake, as well as the entire exhaust system for leaks, cracking, pitting, or any abnormalities because it was referenced in item 8.1 of the bulletin (T233:43-48; T234:5-17).

109. On cross-examination, Mr New confirmed that the bulletin in exhibit VV referred to a ‘potential fire hazard due to clogged exhaust pipe’, also known as the exhaust flex hose (T292:27-40). He agreed that it was directed to the specific issue of debris clogging tail pipes from the outside, and not the exhaust flex hose (T293:34-45; T294:1-13).

110. Mr New stated that the safety bulletins were uploaded to the Sandvik file on the Tritton hard drive, and that all personnel on site had access to them (T235:25-31). He confirmed that, as a PSA, he had access to the Tritton network and the electronic copies of documents kept on it, such as various manuals for trucks and mine risk assessments (T257:35-50; T58:1-6). Mr New agreed that these were also available as hardcopies, such as in the meeting room or in machine cabins, but that most people would electronically access the digital copies on the network’s system using computer terminals (T235:2-30; T258:8-27).

Blayne Charles Foster (Sandvik Field Service Technician at Tritton)

118. Mr Foster gave evidence that he was presently working as a field service technician with Sandvik and impressed me as a reliable witness (T329:20-21; T332:25-26). He confirmed that he completed his apprenticeship and achieved his associated trade qualification for the Certificate III in Heavy Plant Mechanics on 13 February 2020 (T330:27-39). Mr Foster agreed that as at June 2018, he was two and a half years, or halfway, through his training (T330:41-46).

119. Mr Foster confirmed that after beginning employment with Sandvik in August 2017, he was appointed a PSA around February 2018 (T330:48-50; T331:1-4). He stated that he was the contact for Sandvik equipment, including the TH663 trucks (T331:6-9). Mr Foster also said that he would assist with particular or specialised breakdowns, maintenance on equipment, and auto-electrical duties when there were labour shortages (T331:11-22). He agreed that he would review and advise on safety bulletins and that Tritton maintenance would not usually involve him in decisions as to whether trucks should be taken out of service (T331:28-48). This included UTH16, and Mr Foster confirmed that he did not provide any opinion or assessment as to whether it should be taken out of service (T331:40-42).

120. Mr Foster agreed that he inspected UTH16 on 15 June 2018, and that he recalled seeing a small puff from the engine bay on start-up that stopped once the engine settled into its normal idling routine (T338:19-44). He agreed that he did not see anything else from that point onwards to indicate a leak (T338:46-48). Mr Foster stated that he would describe the hole causing the puff as minor or minimal (T339:16-21). He confirmed that the truck was not taken for a test-drive on this date (T346:32-33).

121. Mr Foster gave evidence that he started a work order for a scope, prepared the paper job-scoping form for the replacement of the exhaust pipe, and discussed those circumstances with the Tritton maintenance team (T340:27-42). Mr Foster said that he could not recall who he spoke to, but that one of them would have inspected it or sent somebody else to do so as part of the process (T341:15-22). He also stated that he ensured that the scoping form was handed over to the planner, Mr Baaten (T341:28-36).

122. Mr Foster stated that, on 20 June 2018, UTH16 came in for an inspection of and repairs to the retarder, he and Mr New drove the truck to check whether it was working, and he saw a puff of smoke when its engine started up (T331:44-48; T339:1-7; T342:40-50; T346:45-47). He stated that this did not trigger any safety concerns because he considered it to be minor (T340:9-15) and agreed that he recalled informing Mr New that he scoped the part and that Mr New replied, ‘no worries’ (T343:1-8).

123. Mr Foster gave evidence that Mr New noticed that the exhaust flex was leaking, but that he himself did not hear anything during the test drive of UTH16 (T332:7-13). He confirmed that he could not see anything like the flex hose within the engine compartment while driving the truck (T346:49-50; T347:1), and that there was no attempt to rev the engine to its full capacity to determine how significant the leak was (T347:10-12). Mr Foster stated that he did not recall Mr New expressing concern about the exhaust flex while they were together or at any point after the fire occurred (T343:13-18).

118. Mr Foster stated that he went on leave on 20 June 2018 and did not return until seven days later (T343:29-39). He agreed that he recalled talking to Mr New about the test wire he left in UTH16 (T343:47-48), but that he did not recall having any other conversation with him between 20 June 2018 and when the fire occurred on 23 June 2018 (T343:50; T344:1-2). He agreed that if he had identified a genuine safety concern in the course of his employment, he would have done something about it (T341:46-48).

119. Mr Foster agreed that he received a safety induction at the Tritton mine when he first started (T332:39-44), and that he had access to the M-drive, which contained Tritton and Sandvik documents relating to risk management (T333:15-26). He agreed that he and other Tritton employees could access these documents through terminals, including in the maintenance area (T3:41-46).

120. Mr Foster confirmed that he attended pre-start meetings every day at the beginning of each shift as a Sandvik PSA, but that he did not attend daily inspections conducted by the specialist maintenance crew (T334:1-15). He agreed that there were 250-hour services occurring approximately once every two weeks on heavily used vehicles, and confirmed that the specialist maintenance team would check, identify defects, maintain, and manage machinery while he would give advice on specialised issues as the PSA in relation to safety matters identified by Sandvik (T334:45-50; T335:1-13).

121. When asked specifically about the fan in the UTH16 truck, Mr Foster stated it pulled air from the engine bay and that, when pushed out, it was strong enough to blow a hard hat off at full speed (T336:11-25). He confirmed that the fan had an automatically variable speed that would spin harder when the engine was hotter (T336:27-32).

122. When asked about the fire suppression system, Mr Foster agreed that it was installed on UTH16 (T345:38-40) and that the auto-detect line would trigger the fire suppression system when it failed (T338:4-11). He stated that he was not aware of any issues with this system on UTH16 and agreed that it appeared to be functioning in accordance with the specifications (T345:47-50; T346:1-3). Mr Foster did not recall what temperature it failed at but accepted that the Sandvik manual said it would fail at 150 degrees (T338:13-17).

123. Mr Foster stated that Sandvik safety bulletins were made in response to incidents that occurred on other trucks in different locations to inform others about hazards and solutions, and that the PSAs were to coordinate compliance with those bulletins (T344:15-28). Regarding the bulletin on ‘Potential fire hazard due to clogged exhaust pipe’, Mr Foster agreed that he read this to mean mud and loose rocks clogging up a tail pipe and not the exhaust flex pipe (T345:14-24). He stated that he did not recall any safety bulletin issued in relation to trucks like UTH16 in relation to leaks in the exhaust flex hose before or after the event in question (T345:26-32). Mr Foster stated that he did not know of any direction or manual requiring trucks with exhaust flex hose leaks to be parked up (T345:34-36).

Jesse Rhys Harrison (mechanic at Cloverdale Motors)

130. Mr Harrison was called and gave evidence that he was employed as a mechanic at Cloverdale Motors. He gave evidence in a forthright manner and I accept him as a witness of truth.

131. Mr Harrison agreed that he carried out an inspection at approximately 6:30am on 23 June 2018 and noted an existing transmission oil leak on the defect sheet (T350:12-14), alongside other issues including a broken grease nipple in the cylinder bottle, and two small coolant lines rubbing on the air intake that could potentially let dust into the engine (T351:47-50; T352:1-7). Mr Harrison did not recall how long the oil leak had existed for, but he knew that it was there before the inspection and that it was known about for some time (T350:16-25). He stated that the oil leak was not attended to on that day (T350:26-29).

132. In cross-examination, Mr Harrison confirmed that he looked at the turbo heat shield as part of his daily inspection, and that the exhaust flex pipe was in relatively close proximity to the turbo heat shield (T352:37-45). He agreed that when he inspected UTH16 on 23 June 2018, nothing stood out to him about the exhaust flex pipe and that he did not see any visible soot coming out of it (T353:4-9). Mr Harrison stated that the truck was not running when he inspected it, so he could not hear if the exhaust sounded different (T353:11-15). When pressed, he confirmed that he identified that the transmission oil levels were low, which required him to start up the truck and that when this occurred, he did not hear anything unusual in relation to the exhaust note (T353:29-38).

133. In reference to his statement that he heard a discussion in the workshop that a fitter had found a leak in the exhaust flex, Mr Harrison stated that he could not recall who found the fault or who he was speaking to (T352:11-17).

James Douglas Morley (heavy vehicle motor mechanic at Three Rivers Machinery)

134. Mr Morley gave evidence that he was a heavy vehicle motor mechanic, employed as a senior mechanic by Three Rivers Machinery. I accept him as a witness of truth.

135. Mr Morley stated that when UTH16 was driven into the workshop overnight on 23 June 2018, he noticed that the exhaust or noise of the truck was different and considerably louder than usual (T355:13-24). He said that it sounded like an exhaust leak because he heard a different note coming from it than what was usually heard from trucks with a well-functioning system (T355:26-31). Mr Morley gave evidence that he was concerned that it was not operating properly with an exhaust leak into the engine compartment, where there are components that could potentially overheat with a leaking exhaust (T355:33-37). He stated that he notified Mr Hutcheson to determine how to proceed because he considered it to be the issue to be the same as a breakdown (T356:1-6).

136. Mr Morley confirmed that he used his bare hand to feel the exhaust flex pipe to see if there was a leak or problem (T356:15-19). He stated that when the truck was in idle, he could not feel a leak as there was a lot of air coming from the fans, but that he could feel the heat radiating from it (T357:1-7). Mr Morley confirmed that the truck’s engine was loaded up to simulate an operating condition, and only then could he feel the leak with his hand (T357:17-23). He also confirmed that the truck had been working and driving up and down the decline before entering the workshop (T358:8-24).

137. Mr Morley agreed that he recalled trucks being stood down for defects such as leaking hoses and holes in the exhaust pipes, such as those carrying flammable liquid, and that defects in the exhaust flex hose were not uncommon (T358:29-46). He also stated that supervisors would decide whether to stand trucks down depending on an assessment they made at the time (T359:1-5).

Blake James Hattch (previous maintenance supervisor at Tritton)

138. Mr Hattch was called and gave evidence that he was occupied as a mechanical supervisor by National Group (T361:41-42; T362:1-2). I accept Mr Hattch as a witness of truth.

139. Mr Hattch confirmed that he held a Certificate III in Heavy Vehicle Plant (T362:41-43), earned through a trade upgrade after ten years as a light vehicle mechanic in the industry, as well as through TAFE modules and recognition of prior learning (T363:1-10; T69:38-40). He stated that he had 15 years’ experience in vehicle maintenance for underground hard rock mines (T363:15-18).

140. Mr Hattch agreed that he previously worked as a maintenance supervisor at Tritton (T369:42-44). He confirmed that issues arose with the trucks given their working environment, and that fitters were the first to see vehicle defects and then the job would be scoped and that discussions would be had with the maintenance supervisor or the Sandvik PSAs regarding issues (T370:4-19). Mr Hattch agreed that he said that when issues arose, formal risk assessments were not usually conducted but the vehicle would be gauged to see if there was any risk of a fire and the vehicle would be parked up, investigated, repaired, or further analysed from there (T370:41-48; T371:1-13).

141. Mr Hattch confirmed that he had seen issues with the integrity of the exhaust flex hose on at least twelve occasions, having worked on the specific model of the truck for about four years at the time (T371:20-30, 36-40). He agreed that the flex moved when the truck was under pressure and can create tiny holes in them (T371:32-34) and that he had never seen any of these issues result in a fire (T371:43-45).

142. Mr Hattch agreed that he generated the document ‘CMO4190759’ on 23 June 2018 (T363:20-27). He confirmed that Mr Morley approached him with concerns that the matter was not followed up on, so Mr Hattch ordered the part and marked it urgent priority because he thought that they needed to get on top of the issue as the truck had been leaking for a couple of weeks (T363:33-50). Mr Hattch stated that it was common for the top of the exhaust flex to get heat affected and agreed that it was common for wire covering to get heat affected and cracked (T374:4-8, 20-26). He confirmed that the flex hose leak and wire cracking were normal things and that he had no trouble marking it urgent so it would be replaced at the next service interval (T374:35-40).

143. Mr Hattch confirmed that it was his practice to ‘classify any repairs involving the exhaust flex or fuel system as urgent because of the potential risks involved’ (T364:14-17). He agreed that after his conversation with Mr Morley on 23 June 2018, he did not have a conversation with anyone else about the hole in the exhaust flex and that he did not have anything further to do with UTH16 (T366:38-50; T367:1-4; T372:34-40). Mr Hattch stated that he did not recall speaking with Mr New on 23 June 2018 (T367:6-10). He confirmed that if Mr New, or another Sandvik PSA, had advised him to park the truck up or take it out of service, he would have done so (T373:9-35).

144. When asked specifically about the Sandvik safety bulletin of 12 April 2018, Mr Hattch confirmed that it stated that the ‘other checks’ of the exhaust system, recommended in the bulletin as applicable to all Sandvik trucks, were to ensure that the exhaust pipe was clean and intact to provide the free flow of gases and to ensure that there were no signs of overheating in the air filter and injector hose (T368:5-15). He said that these checks also included checking any leakage in the exhaust piping which might cause a fire hazard and needed to be repaired immediately (T368:25-28).

145. Mr Hattch agreed that, for the potential fire hazard of clogged exhaust pipes, it referred to getting clogged by mud and rocks from the outside (T375:8-29). He stated that the bulletin was about the tail pipe where the dust was ejected from the system and agreed that it had nothing to do with the exhaust flex hose (T375:37-48; T3761-2). Mr Hattch confirmed that the reference to the exhaust pipe being clogged from the outside referred to the tail pipe (T376:12-14).

146. Mr Hattch stated that in reference to the safety bulletin, it was open to interpretation and that he understood it to mean checking the entire exhaust piping, from the turbo to the tail pipe, including the flex (T376:40-50; T377:1-7). He gave evidence that the requirement to ‘check for any leakage’ was done by ‘listening for exhaust leakage, putting your hand over the situation at a reasonable distance’, and that black soot indicated leaks (T377:9-13). Mr Hattch stated that he did not independently gauge whether to take the truck out of service on 15 June 2018, because he was not present, on 20 June 2018, because he was not aware of UTH16’s exhaust leak, or on 23 June 2018, because he did not see the truck (T377:19-33).

Jesse-Lee David Hutcheson

147. Mr Hutcheson was called and gave evidence that he was employed by GT Brake & Clutch as a mechanic (T378:37-41). He presented as a reliable witness.

148. Mr Hutcheson confirmed that, in his experience, a hole in the exhaust flex is not an unusual defect (T379:33-36) and recalled multiple occasions where he replaced exhaust flexes on trucks, but he did not know which trucks specifically (T379:41-48). He agreed that this and other issues arose because the trucks ran in difficult environments (T378:4-6).

149. Mr Hutcheson confirmed that he did not recall anyone speaking to him about a flex hose issue because these were routine conversations (T378:26-29). He agreed that if he had received a scope that indicated heat cracking to the exhaust flex wiring, he would have had a look at it to ensure that it was not impacting the machine’s functions and make a judgement call about replacing parts or keeping the truck in service (T380:39-50; T381:1-2). Mr Hutcheson also agreed that this judgment call would be based on how significant the hole or wiring damage was (T381:4-7), but that he did not recall making an independent assessment as to whether UTH16 should be taken out of service on this occasion (T381:35-37).

150. Mr Hutcheson stated that UTH16 was the only instance where an exhaust leak has been speculated to cause a fire (T381:9-12).

Dale Jeffrey Warrener (previous Tritton maintenance supervisor)

151. Mr Warrener gave evidence that he was employed by Aeris Resources as a maintenance foreman and working at the Tritton mine (T383:18-25). He appeared to be a reliable witness.

152. Mr Warrener stated that he held a Light Vehicle Motor Mechanics Certificate III, which involved a four-year apprenticeship (T384:38-46). He agreed that as of June 2021, he had 10 years’ experience in underground mining roles in respect of all onsite equipment, including trucks (T384:48-50; T385:1-5).

153. Mr Warrener confirmed that in June 2018, he was the maintenance supervisor at the Tritton mine, and that he was familiar with the SAP system (T385:28-39). He agreed that a ‘change corrective maintenance order 4190017’ was entered on 15 June 2018, but that he did not see the document during the period between 15 June to 23 June 2018 (T385:41-50; T386:1). Mr Warrener stated that if this document came to his attention, he would have asked if it was completed, and if it was not completed, he would have wanted to know why and get the machine inspected (T386:3-8). He said that if an inspection showed a leak in the exhaust flex, he would have taken the conservative and safest approach, which he said would be parking the machine up and getting parts to rectify the defect before the machine was returned to service (T386:10-13).

154. Mr Warrener confirmed that if he had been told about the exhaust flex hole, he would have taken this action as the safest approach because the exhaust system leak created a potential for exhaust gases and heat to escape where it should not (T386:25-37). On cross-examination, Mr Warrener agreed that he was not an expert in the assessment of the causes of fire, risks of fire, or how fires may be caused by a leak in an exhaust hose (T387:15-20; T388:20-23).

155. Mr Warrener agreed that he would consider the size and position of a hole in the exhaust flex hose during any inspection (T387:33-43). He stated that he would not be critical of colleagues choosing to put a vehicle with a small hole in the exhaust flex back into service (T388:17-18).

156. Mr Warrener confirmed that the terminology for the tail and exhaust pipe are interchangeable, and that the fans drag air out of the engine bay at a strength that could knock a hard hat off (T389:28-47). He also stated that the radiator contained coolant cores, over which air is dragged to cool the coolant before it goes back into the engine (T390:43-48). Mr Warrener agreed that around the time of the incident, he saw the outputs of a system that recorded and reported coolant temperature, and that the temperatures were ‘on spec’ on the machine and within the range noted by Sandvik (T391:34-50).

157. Mr Warrener agreed that he never saw the leak in the exhaust flex hose, and that parts in the engine bay get extremely hot, including the exhaust flex hose (T392:31-39; T393:7-9). He confirmed that a heat suppression blanketed system sits on top of the fuel tank and that, when servicing or inspecting a vehicle, he would never put his hand near the exhaust flex hose (T393:11-26).

158. Mr Warrener confirmed that he worked with fitters, Sandvik embedded PSAs, a planner, and a superintendent, and that advice given by Sandvik’s PSAs would be followed (T393:36-43; T394:5-9). He also confirmed that there were daily inspections, prestart checks, and 250-hour inspections and services approximately every two weeks (T394:21-34). Mr Warrener agreed that when a defect was identified, a formal written risk assessment was not always conducted and that a judgment would be made about how to deal with a particular issue as it arose (T394:36-49).

The Elements of the Offence

159. There are three essential elements to establish a s 33 (Category 3) offence for failing to comply with s 19(1), namely:

Element 1:   The defendant was conducting a business or undertaking;

Element 2:   The defendant owed a health and safety duty to ensure so far as was reasonably practicable, the health and safety of:

1. workers engaged by it or workers whose activities are influenced or directed by the defendant;

2. While the workers were at work in the business or undertaking; and

Element 3:   The defendant failed to comply with its health and safety duty.

160. Only element 3 is in contention in these proceedings.

161. Section 33 is to be contrasted with s 32, which requires the additional element that the defendant's failure exposed an individual to a risk of death, serious injury or illness.

162. The duty of care under s 19, together with s 17 and s 18, required the defendant to eliminate risks at its place of business or undertaking (and where that is not possible, to minimise risks) by taking all reasonable practicable measures available. It is the existence of a risk to the health and safety of workers that constitutes (with other elements) the offence: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531.

163. The prosecutor handed up a document to clearly express the prosecution case. It became exhibit SSS, as follows:

‘The prosecutor contends that the hole in the exhaust flex would create an uncontrolled heat source that would increase the engine compartment temperature above normal operating temperatures, such that it could cause a fire on the truck.

The hole in the exhaust flex created a heat source which raised the engine compartment temperature in circumstances where there was a range of potential fuel sources which could cause a fire to ignite including:

• Flammable material such as combustible oil, hydraulic fluid, grease residues, lubricants, dirt, debris or diesel fuel. In this regard the prosecutor will also seek to rely on, inter alia, cl 2.7.2 of the Maintenance Manual and Operator’s manual;

• Flammable diesel particulate matter, being a component of diesel exhaust including soot particles made up from carbon, ash, metallic abrasion particles, sulphates and silicates. In this regard the prosecutor will also seek to rely on cl 2.8.5 of the Maintenance Manual and Operator’s Manual; and

• Components located within the engine compartment, eg inside switchgears, valves, plastic components and batteries. In this regard the prosecutor will seek to rely on cl 2.7.3 of the Maintenance Manual and the Operator’s Manual.

Raised engine compartment temperature caused by a hole in the exhaust flex could also cause a failure of the electrical or fuel systems, which in turn could start a fire. In this regard, the prosecutor relies on clause 2.7.2 of the Maintenance and Operator’s Manual.’

The defendant’s case

164. As with any criminal trial, the prosecutor must prove each element of the charged offence beyond reasonable doubt. He must do so consistent with the way he has particularised his case. No less is required.

164. To prove that the defendant breached its duty, the prosecutor must prove that:

1. a risk to health and safety of workers arose; and

2. reasonably practicable steps or measures were not taken by the defendant, thereby exposing the worker to that risk to their health and safety.

166. The prosecutor has alleged the risk to workers as being ‘exposed to risks to their health and safety from the UTH16 catching fire while it was travelling the Main Decline, due to the emission of hot, unfiltered diesel exhaust from a hole in the exhaust flex pipe of UTH16…’ It has chosen to focus on that specific mechanism by which the risk is said to arise, as opposed to a more general or non-specific risk of fire.

167. Therefore, it is submitted by the defendant, the prosecution must prove the existence of a plausible mechanism by which the hole in the exhaust flex hose of UTH16 could cause a fire in the engine bay. I accept this to be the matter that requires proof beyond reasonable doubt.

168. This is not a case where an incident (here the fire) represents a manifestation of the risk thereby directly proving the existence of the risk.

169. The Agreed Facts state that ‘[t]he cause of the fire is unknown’. It follows that most of the evidence in the trial was about a fire that it is not said was a manifestation of the risk alleged.

170. The prosecutor did not call any expert evidence to explain how it is that a hole in the exhaust flex would, could or even might cause a fire in the engine bay.

171. And no other evidence has been led as to the mechanism in Exhibit SSS, nor any other mechanism linking the hole in the exhaust flex hose with the prospect of fire in the engine bay.

172. Senior Counsel for the prosecutor later said (12/7/22 T307 L25):

‘Yesterday's transcript, p 238, your Honour will see in the first para I informed your Honour and the Court about the Prosecutor not seeking to call or tender the reports of Mr Marshall. And then the last sentence the record shows which I submitted: "That does not mean that the Prosecutor seeks to depart from the pleaded case or the particularised risks or failures." I need to just make sure that it's understood what the Prosecutor's case is in light of something my learned friend said.’

173. He continued:

‘I must make it abundantly clear the risk as set out in para 30 of the amended summons, and the Prosecutor has not sought to amend the particulars, and the Prosecutor does not suggest that the document is a further particularisation of the risk.’

174. The defendant accepts that only a risk of fire needs to be proved, not that an actual fire eventuated. But the means by which the risk of fire exists does need to be proved. A plausible mechanism by which the exhaust flex could cause a fire is essential. The prosecution understood that when it tendered Exhibit SSS, but failed to call any evidence in support of it.

175. In any event, the defendant has never suggested that a ‘precise’ mechanism is required. However, it must be the case that some plausible mechanism (or possibly a range of mechanisms) is established.

176. Nonetheless, I accept that the evidence relied on by the prosecutor has various flaws:

1. none of the witnesses have been appropriately qualified as an expert to give opinions about the existence of a plausible mechanism to link a hole in an exhaust flex hose to a risk of fire;

2. even if any such witness is so qualified, they would only be barely so such that the court would put little or no weight on such conclusions;

3. in any event, on proper analysis, none of those witnesses gave evidence of the matters that the prosecution would require to prove its case; and

4. the main witness upon whom the prosecution now relies (having chosen not to call its actual expert witness) is Joshua New. The defendant asserts his credibility was so profoundly damaged that no weight could conceivably be placed upon it.

177. Further, and critically, the defendant submits that the evidence overall demonstrates the implausibility of a hole in an exhaust flex hose leading to the possibility of fire whether by an increase in the ambient temperature of the engine bay or otherwise.

178. The defendant points to the evidence that has been given – predominantly from cross-examination by the defendant and asserts that it demonstrates the implausibility of an increase in ambient temperature of the engine bay as a result of a hole in an exhaust flex hose:

1. the hole itself was described by Mr Foster as ‘miniscule’, ‘minor’, ‘minimal’ or ‘very, very, very small’;

2. the engine bay is open with holes and vents permitting air to circulate through it;

3. there is a massive fan pulling air out of the engine bay in very close proximity to the exhaust flex hose the very purpose of which is to keep the ambient temperature down;

4. there is a fire detection wire which is designed to fail (and so set off the fire suppression system) at 150 degrees. It was in close proximity to the exhaust flex hose and did not fail:

1. even Mr New accepted that the non-activation of the fire suppression system means that the ambient temperature did not even get to 150 degrees in close proximity to the exhaust flex hose; and

2. this is very significant given that UTH16 was towards the end of its shift and so had been working hard and under major loads for many hours at the time of the fire;

5. even assuming that the temperature of exhaust gases in the exhaust flex hose is 600 degrees (as suggested by Mr New):

1. it dissipates so quickly that Mr Morley was able to place his bare hand in proximity to the leak in order to feel the gas being emitted and did not suffer any burns or injury; and

2. there are other sources of heat in an engine bay of “well in excess of 600” degrees, including metal components such as the DPF and the exhaust manifold.

179. I accept that the evidence demonstrates that a hole in an exhaust flex hose is a common occurrence, but there is no evidence before me that it has previously caused a fire. I note the following:

1. There had been a hole in this exhaust flex for 8 days during which UTH16 was operating for, essentially, 24 hours per day and no fire occurred;

2. There was not a Sandvik or defendant witness called by the prosecutor has ever seen or heard of a fire in an engine bay caused by a hole in an exhaust flex hose;

3. Mr Blake Hattch gave evidence that small holes in an exhaust flex hose were common, that they were dealt with as part of routine maintenance, that he had never known a fire to result from the existence of one and that this included when trucks had been run with no exhaust flex hose at all;

4. Mr Jesse Hutcheson gave evidence that a ‘flex hose hole’ was a ‘relatively routine one’ that he had ‘seen quite a lot’;

180. I note that while the prosecutor led evidence of previous incidents involving fires in engine bays from Sandvik documents, none involved a hole in an exhaust flex hose and led evidence of Safety Bulletins from Sandvik resulting from earlier incidents, none of which followed a fire said to have been caused by a hole in an exhaust flex hose.

181. The prosecutor relies on the refuelling on the afternoon of 23 June 2018 as evidence of the potential for overflow and residual diesel fuel to enter into the engine compartment as a fuel source. The prosecutor does not allege that the defendant breached its duty by allowing refuelling to take place in the manner described in the video which it seeks to tender.

182. The prosecutor submits that the evidence of Mr New was based on his specific knowledge of the temperature of the exhaust air/gas within the exhaust flex from a process of stall testing which he carried out on the mine’s TH663 trucks from time to time when they were in the workshop in order to identify how much life was left in the DPF. When performing a stall test, Mr New would read the exhaust temperature from the DPF monitor, which was shown on an LCD display in the engine component of the machine. The DPF monitor sensor was located (and therefore measured the temperature) just inside of the flex pipe before it enters the DPF.

183. The range of temperatures Mr New observed during stall testing was ‘anywhere from 100 to 650 odd degrees’ with the lower temperatures observed while idling, and he explained: ‘the more you increase the throttle, the more loading you put on the engine and the components, and with that it generates a lot of heat. If you were to put it at approximately 50% throttle, you still would possibly see over time a reading of up around [the] 600 degree mark, but it 'II just take longer to get there.’

184. The defendant asserts that as the prosecution had determined not to call the exert on risk, Mr John Marshall, professional engineer, when it opened its case, the prosecution then sought to qualify Mr New as an expert to give evidence as to the pleaded risk.

185. The defendant asserts that this evidence cannot be used in the way that the prosecutor asks the Court to use it, but before which the defendant wishes to emphasise a fundamental point, which can be summarised as follows:

• Mr New did not give evidence which sought to explain a plausible mechanism for the whole in the exhaust flex causing a fire.

• Mr New’s evidence ought be rejected due to his lack of credibility.

186. In cross-examination Mr New accepted that he had lied in his statement about his qualifications:

‘Q. You know that there are qualifications people can obtain to achieve that status of being a qualified mechanical diesel fitter.

A. Yes.

Q. There are mechanic qualifications specifically.

A. Yes.

Q. Certificate 3 and other sorts of qualifications.

A. Yeah.

Q. There are also apprenticeships you can do in that area as well.

A. Yeah.

Q. You've done neither of those things.

A. Not in a mechanical trade directly.

Q. No, nor in relation to diesel fitting.

A. No.

Q. I just want read then to you, having said all of that, paragraph 4 of your statement of 15 August 2021. You said, "I am a qualified mechanical diesel fitter."

A. Yes, that was.

Q. Just wait please. I haven't asked you any other questions. You said, "I am a qualified mechanical diesel fitter", yes.

A. Yes.

Q. Were you a qualified mechanical diesel fitter at the time that you made that statement?

A. No.

Q. Did you know that you were not a qualified mechanical diesel fitter at the time that you made that statement?

A. Yes.

Q. When you made that statement, with all the checking and care that you took about it, you included something which you knew not to be correct.

A. Yes.

Q. You deliberately made a false statement in a document knowing it to be false, yes.

A. Yes.’

187. In re-examination the claim was made that Mr New had not properly heard the question because of his industrial deafness. In my view, the way in which he answered the series of questions above indicates that he did hear and understand the questions.

188. I further note that Mr New signed a statement that says that he had qualifications that he does not hold. The defendant asserts that I should reject his evidence save to the extent that it is confirmed by other independent evidence or is uncontroversial.

The admissibility of Mr New’s “expert” evidence

189. The prosecutor’s reliance on Mr New as an expert in these proceedings is a matter to which significant importance attaches.

190. Whilst I accept that Mr New can give opinion evidence as to, for example, the identification of certain parts of the vehicle’s engine and, at a basic level, how they work. However, opinion evidence about causes and potential causes of fire is highly specialised. The causes of and potential to cause fires is an important issue in these proceedings. I accept that although experienced, Mr New cannot be regarded as an expert on this issue.

191. Mr New is an auto-electrician and has a ‘gas handling ticket for refrigerant’.

192. Importantly, this evidence was given:

‘Q. Would you mind speaking up as much as you can? Do you have any formal training or qualification in relation to mechanical diesel fitting work?

A. No, I do not.’

193. It is evident that he had no qualifications relevant to diesel engines as the primary prosecution expert to explain important mechanical and engineering matters in a proceeding of this nature. Further, I accept he doesn’t have any qualifications or experience in fire analysis, prediction nor any of the scientific disciplines that underpin such true expertise.

194. The evidence that Mr New ‘put a complete exhaust system in three times in the 663 haul trucks’ is to my mind insufficient to establish the requisite expertise.

195. However, the prosecutor seeks to rely not just on Mr New but on other tradespeople who were called in the case.

196. The prosecutor at PS [83-85] seeks to rely upon what various tradespeople saw heard or otherwise perceived as founding the basis for an opinion of those witnesses that their perception carried with it an opinion as to a risk of fire. The prosecutor seeks to found this argument based upon s 78 of the Evidence Act 1995. That section is as follows:

‘The opinion rule does not apply to evidence of an opinion expressed by a person if—

(a)   the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and

(b)   evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.’

197. The section is aimed at permitting an account of a person’s impression of a situation. In Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379, a case relied upon by the prosecutor, White J allowed an opinion into the proceedings that related to an impression regarding commercial negotiation. The entirety of what was allowed into evidence is found at [2] of the case and is reproduced as follows:

‘The gist of the conversation was that the parties would await the outcome of the meeting with the DOT. While my handwritten notes were not able to capture every word of the conversation, Ken Butt clearly left the impression he would sort the matter out and that it was not a big deal. Conversely, Kevin Warrell made it clear that CGEA wanted to proceed subject to the DOT issue being sorted out. Ken Butt did not say anything that suggested that he would not deal with CGEA or that the matter would not settle. While Ken Butt did not say much, I was left with the impression that at the least everyone would await the outcome of the meeting on the following Friday with completion to be postponed until at least that time or shortly thereafter.’

198. I accept that in these proceedings, the opinion sought to be established goes to the heart of the matter: the risk of fire from a hole in an exhaust flex hose. Perceiving a hole in an exhaust flex pipe is a matter of fact capable of being established under s 76. It does not require an opinion to be expressed regarding the potential risk of fire arising from the perception of the hole. The perception of the hole is not something which requires a risk of fire to obtain a proper understanding of the matter or event. The ‘matter’ (using the wording of s78) is the hole, not the risk of fire. The event is the hole, not a conclusory opinion as to the existence of a risk of fire.

199. I note that none of the lay witnesses could have experience of the kind necessary to give an opinion that a hole in the exhaust flex gives rise to a risk of fire because none of those witnesses have ever seen heard or perceived of such a situation occurring.

200. In this case none of the witnesses gave evidence saying words to the following effect: ‘I know a hole in the exhaust flex can cause a fire because I have worked on previous trucks where similar holes were present and when the engine was revved up a fire occurred’. That is the important distinction here. This case is concerned with a fire and a risk of fire. There is no evidence of anyone knowing of a fire occurring because of a defective or damaged exhaust flex, including Mr New.

201. In this case it is not challenged that various workers could identify the exhaust flex hose or the hole in it. They might not have designed the engines; they might not be mechanical engineers, but they could and did give evidence of the fact of their perception of a hole in an exhaust flex hose.

202. I accept that none of the witnesses had any expertise in what could cause a truck engine to catch fire, and nor could they give evidence of how (as a matter of physics and chemistry) a hole of that kind in the location would then give rise to a risk of fire. The exhaust flex hose was carrying flammable liquid so that it might obviously follow that if there was a hole flammable liquid would be expelled. Here we are concerned with the expulsion of exhaust gas through a hole of unknown size in very close proximity to a fan which is designed to expel large quantities of air (and in turn heated gasses) from within the engine compartment and the quantum leap to that release being capable of causing a fire.

203. The prosecutor has acknowledged at [94] that ‘it is true that none of these tradesmen gave evidence of personal experience of fire having been caused by a hole in the exhaust piping, they nonetheless obtained knowledge of the risk through their experience’. However, there is no evidence of the experience of any of these tradespeople that means they can claim that they have gained specialised knowledge and experience of the risk of fire from a hole in exhaust flex hose.

204. The other Supervisor – Mr Hattch – had the practice of not parking up a vehicle with a hole in the flex hose. That practice only changed because of this fire:

‘Q. When we talk about your paragraph 24, I think, in your statement that you were being asked questions about before - excuse me, I'll just pull it up - what you said in the last part of that paragraph that we didn't spend much time on, you said, "This usually meant the job would be done within the next two to seven days at the next periodic service interval."

A. Yes.

Q. You identify that issue, kind of issue you've seen before, as never caused a fire, yes.

A. Yes.

Q. Then what you do is ordinarily mark it urgent. That means it will be done at the next service interval.

A. That's correct.

Q. You've indicated in your statement helpfully that you changed your practice after this incident.

A. Yes.

Q. Pretty understandable because a fire had happened, and people were talking about maybe it was the exhaust flex hose, yes.

A. Yes.

Q. But that's the reason you changed your practice.

A. Yes.’

205. Mr New gave evidence that the process followed at Tritton was that he would give advice and the Tritton mechanical staff would make the relevant judgment call:

‘Q. And you said, "Prior to the UTH 16 catching fire, I previously identified leaks in exhaust pipes and advised that the trucks be taken out of service"? Yes?

A. Correct.

Q. And this is the extent of what you then said about that: "Sometimes they were and sometimes they were not"? Yes?

A. Correct.

Q. So sometimes your advice was followed, yes?

A. Sometimes, yeah.

Q. And sometimes it was not?

A. Correct.

Q. But as you keep telling us, actual decisions about these machines were to be made by the Tritton maintenance staff, right?

A. Correct.

Q. You were advising them, yes?

A. Yes.

Q. But you would expect them to make their own judgment calls?

A. Yes.

Q. So what you're saying is there were times when you identified something, gave some advice, sometimes it was followed and sometimes it was not?

A. Correct.’

206. According to Mr New, after seeing CMO 4190759 he went and asked Mr Hattch what the issue was with the exhaust wiring on the UTH16 and why it needed repairing. Mr Hattch replied saying that it was ‘scorched, or singed... [or] along those terms’ to which Mr New replied: ‘Really? Do you really think we should let that truck go to work in its condition?’ In response Mr Hattch had said to Mr New: ‘It's not that bad. We're sending it back. We're sending it to work.’ Again, Mr New said: ‘You really should be parking...’ Mr Hattch has no recollection of this conversation. Notably, this response given by Mr Hattch to Mr New on 23 June 2018 is the same response he gave to Mr New when Mr New had raised his concerns about the defect in the exhaust flex pipe on 20 June 2018. There is no evidence of Mr Hattch, or anyone else, conducting an assessment of the exhaust wiring before he had permitted the UTHI 6 to be put back into service.

206. The prosecutor contends that the suggestion of the Sandvik representative, Mr New, as to how the defect on the UTH16 exhaust flex pipe should be dealt with was once again not taken up by Mr Hattch who had permitted the vehicle to be returned to service.

207. Mr Hattch, who was advised of the exhaust flex pipe leak on both 20 and 23 June 20I8 confirmed in oral evidence that he did not ‘gauge whether the truck should be taken out of service’ on either 20 or 23 June 2018. Mr Hattch's evidence was that he has no recollection of being advised of the leak on 20 June 2018. No other employee of the defendant gauged whether the UTH16 should be taken out of service.

208. Given that there is no evidence of Mr Hattch conducting an assessment of the risk of the defect in the exhaust flex pipe any time prior to his response to Mr New's inquiries on 23 June 2018, Mr Hattch's comment that it was ‘not that bad’ should not be regarded as a statement of the risk posed by the defective flex pipe but rather as a comment on the appearance of the defect itself.

209. Mr Hattch explained that the general practice of the defendant was to manage the risk of a defect by ordering a replacement part and to continue the use of the vehicle until the defect could be rectified. Mr Hattch stated that it was rarely the case that a vehicle would be parked up and taken out of service. It was not the usual practice for mobile plant to be taken out of service for repairs classified as priority ‘2-urgent’. I accept that an inference available to the Court from this evidence is that the defendant placed a priority on production over safety.

Reasonably practical measures available

211. I am of the view that at all times in the charge period the reasonably practicable measures pleaded in the Amended Summons at paragraph [30] at subclauses (a) to (e) were available to the defendant to implement to ensure the health and safety of persons who operated the UTH16 at the Mine and who could be affected by the risk of the vehicle catching fire while being operated underground. Ensure in this context requires that the measures provide a guarantee, or make certain that the health and safety of workers was ensured.

212. The simple and straightforward measure of removing the UTHl 6 from service until the defective exhaust flex pipe was replaced was an available measure that was not taken by the defendant until after the incident. There is no evidence as to why this measure was not reasonably practicable to have been implemented at any time prior to the UTHI 6 catching fire. Reasonably practicable applies to matters which are within the power of the defendant to control, supervise or manage.

213. The measure of conducting assessments of the risk of allowing the UTH16 continue in service with the unrectified risk on 15 June 2018, 20 June 2018 and 22 & 23 June 2018 was available to, but not implemented by the defendant. That measure was reasonably practicable to implement and was one specified in the SOM procedure. There is no evidence as to why this measure was not reasonably practicable to have been undertaken at any time prior to the UTH16 catching fire.

214. To my mind, it was a reasonably practicable measure for the defendant to provide in its work procedures a requirement for keeping in stock at the Mine those parts required to rectify defects on the TH633 fleet, including the UTH16 that may affect safety, so that the parts could be fitted as soon as practicable after a defect was identified. It was reasonably practical for this measure to be implemented by the defendant as demonstrated by the actions of Mr Hattch after the fire to keep in stock those parts that may require replacement given the operational history known about the TH633 fleet.

215. I accept that it would not generally be practical to take measures to guard against a risk to safety that was not reasonably foreseeable and as such employers are not obliged to take every possible step that would be taken. I note that the events that occurred in these proceedings had never taken place prior to the incident.

216. With regard to the question of causation, I accept that the act or omissions of the defendant was not a significant or substantial cause of the exposure to the risk of injury.

217. I note the defendant accepts that only a risk of fire needs to be proved, not that an actual fire eventuated.

218. However, the prosecutor must prove the existence of a plausible mechanism by which the hole in the exhaust flex hose could cause a fire in the engine bay. In my view, the prosecutor has not done so.

219. It is incumbent on the prosecutor to prove that an act or omission was a significant or substantial cause of a worker being exposed to the risk and common sense would dictate that the purpose of any enquiry is to attribute legal responsibility in a criminal matter such as this.

220. I cannot see that there is a causal relationship between the acts or omissions, to the risk to which workers were exposed.

Conclusion

221. The defendant is charged with failing to ensure, so far as is reasonably practicable, the health and safety of workers while they were at work at the defendant’s business or undertaking, contrary to s 19 of the WHS Act and in contravention of s 33 of the WHS Act.

222. The facts establishing the first two elements of the offence are agreed, namely that the defendant was conducting a business or undertaking; and the defendant owed a health and safety duty to ensure, so as was reasonably practicable, the health and safety of the workers.

223. For the reasons set out above I find that the third element, that the defendant failed to comply with its health and safety duty, has not been established to the requisite standard.

224. Ultimately, the prosecutor has failed to prove the risk as alleged in the Amended Summons. If the risk as charged does not arise as part of the undertaking of the defendant, then the acts or omissions said to give rise to the risk have no causal link to the failure to ensure the health and safety of workers.

225. The evidence clearly demonstrates that a reasonable doubt has been raised regarding whether a risk of fire existed in circumstances where these trucks had been run with holes and a fire has never been known to have occurred – before this incident. The prosecutor does not assert that the very fire that happened in this case was caused by the ‘miniscule’ hole in the exhaust flex hose.

226. If this risk in this case exists with a common defect like a hole in an exhaust flex hose, then it must be asked why not one example of such an occurrence was put forward in the trial – not just for this mine and these haul trucks but for any haul truck ever.

227. The Amended Summons will be dismissed with costs.

ORDERS:

228. I make the following orders:

1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

2. I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

3. I will list the matter for directions before me on 21 August 2023 to determine the appropriate course.

******

Amendments

21 July 2023 - Representation amended

Decision last updated: 21 July 2023