Dalliston v Taylor & Anor

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Dalliston v Taylor & Anor  [2015] ICQ 017

PARTIES:

GREG DALLISTON, INDUSTRY SAFETY & HEALTH REPRESENTATIVE

(appellant)

v
GAVIN TAYLOR, CHIEF INSPECTOR OF COAL MINES

(first respondent)
BM ALLIANCE COAL OPERATIONS PTY LTD
(second respondent)

FILE NO/S:

C/2013/16

PROCEEDING:

Appeal

DELIVERED ON:

23 July 2015

HEARING DATE:

8, 9, 10, 12 December 2014

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – CONDUCT OF MINING OPERATIONS – MINE SAFETY – PARTICULAR CASES – where the appellant issued a directive to “stop the use of any mobile plant that is not protected by a protective structure shown to be of an equivalent (or better) engineered standard than in place at the mine prior to the change” – where the first respondent set aside the directive – where the matter proceeded before this court as a de novo appeal – where the light vehicles previously used at the mine were fitted with a roll-over protection system – where the second respondent commenced a process by which those vehicles would be replaced by ANCAP 5 Star rated vehicles – where the senior site executive has an obligation to ensure the risk to persons from coal mining operations is at an acceptable level and to ensure any mobile plant at risk of roll-over is provided with a structure to protect a person using the plant from injury – whether the appellant had standing to bring the appeal – whether there was a basis for making the directive – whether the use of the new vehicles constitutes an acceptable level of risk as defined in the Coal Mining Safety and Health Act 1999.

Acts Interpretation Act 1954, s 24AA
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 12
Coal Mining Safety and Health Act 1999, Part 8, Div 2, s 7, s 11, s 27, s 29, s 33, s 37, s 42, s 109, s 127, s 166, s 167, s 168, s 169, s 175, s 176, s 177, s 243, s 246, s 248
Coal Mining Safety and Health Regulation 2001, s 5, s 74

CASES:

Allan v Transurban City Link Pty Ltd (2001) 208 CLR 167
Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) (2004) 136 FCR 338
Construction, Forestry, Mining & Energy Union v Lyne & Anor [2005] 2 Qd R 378
De Tournouer v Chief Executive, Department of Environment & Resource Management [2011] 1 Qd R 200
Executive Council of Jewry v Scully (1998) 79 FCR 537
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Health World Ltd v Shin-Sun Australia Pty Ltd (2010) 240 CLR 590
Johns v Australian Securities Commission (1993) 178 CLR 408
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552

TXU Electricity Ltd v Office of the Regulator-General (2001) 3 VR 93

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Details
Case
[2015] ICQ 17
Decision Date

CaseChat Overview and Summary

The case of Dalliston v Taylor & Anor involved the appellant, Mr Dalliston, who issued a directive to stop the use of any mobile plant that was not protected by a protective structure of equivalent or better engineering standards than those previously in place at the mine. The directive was set aside by the first respondent, leading to a de novo appeal before this court. The central issue was whether Mr Dalliston had the standing to bring the appeal and whether there was a basis for making the directive, particularly in light of the second respondent's process to replace the existing vehicles with ANCAP 5 Star rated ones, which were not fitted with a rollover protection system (ROPS).

The legal issues before the court were multifaceted, involving the interpretation of the Coal Mining Safety and Health Act 1999 and the Coal Mining Safety and Health Regulation 2001, particularly in relation to the definition of "acceptable level of risk" and the obligations of the site senior executive to ensure the safety of mobile plant at the mine. The court had to determine if the new vehicles constituted an acceptable level of risk as defined by the Act, considering the lack of a common standard for ROPS on the existing vehicles and the absence of evidence that any of the ROPS had been tested for their protective capacity.

The court's reasoning was grounded in the statutory framework provided by the Act and the Regulation. The court considered the obligations of the site senior executive to ensure that the risk to persons from coal mining operations is at an acceptable level and that any mobile plant at risk of roll-over is provided with a structure to protect a person using the plant from injury. The court examined the evidence, including expert testimony, which highlighted the complexity and unpredictability of rollover events and the lack of internationally agreed standards for measuring rollover crashworthiness. The court also noted the higher safety ratings of 5 Star vehicles and the role of Electronic Stability Control (ESC) in reducing rollover crashes.

Ultimately, the court found that the appellant did have standing to bring the appeal and that there was a basis for making the directive. The court concluded that the new vehicles did not satisfy the requirement for an acceptable level of risk, as they were not fitted with a ROPS of equivalent or better standard than those previously in place. The court held that the use of the new vehicles constituted an unacceptable level of risk under the Act.

In light of the findings, the court set aside the decision of the first respondent and restored the appellant's directive, thereby allowing the use of mobile plant only if it was protected by a protective structure of an equivalent or better engineered standard than in place prior to the change. This decision underscores the importance of adhering to statutory obligations for ensuring mine safety and the need for structures that provide adequate protection against rollover risks.

Orders

Orders of the court

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Background

Background to the litigation

The next consideration concerns onus. Although this is, in effect, a hearing de novo, the orders sought by Mr Dalliston include setting aside the review decision. In other words, Mr Dalliston is seeking to establish that his decision was correct and should be reinstated. But, the exercise I must embark on requires that I stand in the shoes of the Chief Inspector and exercise the power afresh. In doing that, the question for this Court is determined by the provisions of the Act relating to acceptable levels of risk. Thus, it is not a question of comparing what was in place but, rather, whether the replacement vehicles satisfy the Act so far as risk is concerned. Background The Peak Downs mine site covers a large area, and in order for employees to be able to be in the right place at the right time a number of vehicles of the “king cab utility” type are used. It was accepted by the parties that these light vehicles fall within the description of “mobile plant” as used in s 74 of the Regulation. The types of light vehicles which had been in use at the mine site were a mixture of makes and models. All of them, though, had been modified by having a rollover protection system (“ROPS”) installed. This took the form of a roll cage within the vehicle or an external cage. This modification was done on an ad hoc basis with the result that there was no common standard for ROPS on the light vehicles. There was no evidence that any of the particular ROPS had been tested to determine their capacity to protect the occupants of a ROPS fitted vehicle. There was evidence, though, as to the capacity of ROPS generally to provide protection. In 2012 BMA commenced a process by which all the light vehicles then being used at Peak Downs would be replaced by similar vehicles which were ANCAP 5 Star rated. The difference in the vehicles (which was to lead to this appeal) is that the new vehicles would not be fitted with a ROPS. ANCAP is the acronym for Australasian New Car Assessment Program. It is a program through which a vehicle’s capacity to withstand impacts can be tested. A rating system is applied and 5 stars is the highest rating available. As part of the process of introduction of these vehicles BMA conducted a series of information meetings and consultations. There is some dispute about the extent of the consultation but it is not a matter which was pursued in this case. On 6 February 2013, Mr Dalliston issued a directive under s 167 of the Act. The directive read:“I have reasonable belief that there is an unacceptable level of risk as a consequence of the mine changing the standards of protective structure as required for plant by s74 Coal Mining Safety and Health Regulation 2001.This has been confirmed by discussions with Mr Sean Milfull Site Senior Executive during discussions at the mine on Wednesday 6th February in the company of SSHR A Large and Health Safety Manager Brett Lamont.Chapter 2, Part 10, Division 2, Section 74 (Protective Structures) of the Coal Mining Safety and Health Regulation 2001 prescribes a way of achieving acceptable level of risk74 Protective structures (1) This section applies to mobile plant used at a coal mine if the plant is assessed as being at risk of overturning or being struck by a falling object. (2) The site senior executive must ensure the plant is provided with a structure to protect a person using the plant from injury if it overturns or is struck by the object. Section 29 of the Coal Mining Safety and Health Act 1999 states how to achieve ‘acceptable level of risk’.29 What is an acceptable level of risk (1) For risk to a person from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is— (a) within acceptable limits; and (b) as low as reasonably achievable. After reviewing all of the documentation provided by the mine which was used to change the standard of ‘protective structure’ on the new light vehicles I cannot find any evidence that the new standard in (sic) not equal to the standard of protection previously in place and hence I have a reasonable belief that this is not as low as reasonably achievable. Therefor not meeting the definition of ‘acceptable level of risk’ as stated in s29 CMSHA 1999.Under my powers pursuant to s119(1)(f) of the Coal Mining Safety and Health Act 1999, I hereby issue a directive under s167 to stop the use of any mobile plant that is not protected by a protective structure shown to be of an equivalent (or better) engineered standard than in place at the mine prior to the change.This written directive is a follow up of the verbal directive issued at the mine at approximately 3pm on Wednesday 6th February 2013.”

Evidence

Evidence Before The Court

The argument for Mr Dalliston was that the new vehicles did not satisfy that requirement and, for that reason, did not demonstrate an acceptable level of risk.The expert evidence Five experts gave evidence, concurrently, based upon their own reports and on a joint report. They were:(a)Dr Shane Richardson, an engineer with extensive experience in crash testing and crash analysis.(b)Dr Paul Bignell, an engineer with extensive experience in vehicle protection systems.(c)Mr Keith Simmons, who holds post-graduate qualifications in technology management with extensive experience in vehicle safety research programmes.(d)Dr Mark Fountain is employed by the Ford Motor Company of Australia as a manager and engineer. He was responsible, during the development of Ford Ranger, for the analytical and physical aspects of its crash safety design.(e)Mr Colin Jackson is an engineer employed by the New South Wales Department of Transport, Roads and Maritime Services. In 2012, at the request of BHP Billiton he conducted tests to assess the crashworthiness of a 2006 Toyota Hilux fitted with internal ROPS and the corkscrew rollover crashworthiness of a similar vehicle both with and without internal ROPS. In their joint report the experts were agreed on a number of matters and, in some cases, one or more of them made additional comments on particular items. One conclusion which may be drawn from all of the expert evidence was encapsulated in Mr Dalliston’s written submissions in this way:“The consensus of expert opinion is that rollovers are complex and chaotic events, taking a variety of forms and involving unpredictable injury outcomes and a variety of different injury mechanism.”[22][22] Written submissions, paras 55. Other general matters which may be drawn from their evidence are:(a)The term “vehicle safety” is a term that can be used to describe the synergistic effect of a vehicle’s active and passive safety systems that together reduce the risk of a crash occurring and mitigate the consequences of any crash that does occur. (b)A problem faced by all the experts was that there is no internationally agreed standard, protocol or test criteria for measuring rollover crash worthiness. (c)There is no agreed standard or test criteria for after-market ROPS fitted to light vehicles. The ANCAP procedures do not include a measure of rollover occupant protection in their safety rating system. ANCAP, though, has determined occupant protection in rollover crashes is provided by safety systems already incorporated in 5 Star rated vehicles. The following matters were agreed by the experts:(a)5 Star safety rated vehicles are safer than vehicles with lower star safety ratings.(b)Electronic Stability Control (ESC) is required to be fitted in order to attain a 5 Star safety rating. It will reduce the number of rollover crashes but will not eliminate them.(c)Addition of an after-market ROPS will increase rollover propensity.(d)Rollover protection should be considered in terms of a “system” rather than purely a structure. The elements of the system and their role and contribution to occupant protection are still not well understood or defined as functional criteria.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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