Director of Public Prosecutions v Hazelwood Power Corporation Pty Ltd (Ruling 4)
[2019] VSC 876
•6 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0214
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| HAZELWOOD POWER CORPORATION PTY LTD | Accused |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 November 2019 |
DATE OF RULING: | 6 November 2019 |
CASE MAY BE CITED AS: | DPP v Hazelwood Power Corporation Pty Ltd (Ruling 4) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 876 |
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CRIMINAL LAW – Evidence – Close of prosecution case – Submission of no case to answer by accused – Whether jury could lawfully find the accused guilty – Extent of risk to the health and safety of employees and non-employees – No evidence capable of supporting conclusion on certain charges – Certain applications granted – Occupational Health and Safety Act 2004 (Vic) ss 21 and 23 – Doney v The Queen (1990) 171 CLR 207.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | S Flynn SC with D Porceddu and A Roodenberg | John Cain, Solicitor for Public Prosecutions |
| For the Accused | I Hill QC with R O’Neill | King & Wood Mallesons |
HIS HONOUR:
The accused is charged with seven offences against s 21 of the Occupational Health and Safety Act 2004 (Vic) (’OHSAct’) relating to an alleged failure to provide a safe working environment for employees, and seven offences against s 23 of the OHS Act relating to an alleged failure to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of the accused’s undertaking.
The charges relate to the Hazelwood brown coal mine. The accused operated the mine. It was an employer, and the mine was a workplace.
The risk to which employees and non-employees are alleged to have been exposed relates to fire spreading into the mine igniting coal in an area called the northern batters contributing to smoke, fine particles and carbon monoxide which might be inhaled by them.
Bushfires external to the mine caused fire to ignite in the northern batters on the afternoon of 9 February 2014, which burned for some weeks.
The prosecution case has now closed. This ruling deals with a no-case submission made by the accused in respect of 12 of the 14 charges.
Relevant principles
There is no dispute as to the principles which apply. In Doney v The Queen,[1] the High Court said:
It follows that, if there is evidence (even tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[2]
[1](1990) 171 CLR 207.
[2]Ibid 214–215.
On a no-case submission the prosecution evidence must be taken at its highest, including by drawing all inferences that are most favourable to the prosecution case that are reasonably open.[3] The test is whether, as a question of law, a jury could lawfully find the accused guilty,[4] bearing in mind that evaluating the evidence, the weight of evidence and drawing any relevant inference is purely a question for the jury. It is assumed that the jury will accept the prosecution witnesses as credible and reliable.[5]
[3]Attorney-General’s Reference (No 1 of 1983) (1983) 2 VR 410; Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323; R v Galbraith (1981) 2 All ER 1060.
[4]May v O’Sullivan (1955) 92 CLR 654; Zanetti v Hill (1962) 108 CLR 433.
[5]Attorney-General’s Reference (No 1 of 1983) (1983) 2 VR 410.
Legislation
The accused faces seven charges under s 21 of the OHS Act, which deals with duties of employers to employees:
(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
(2)Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following—
...
(c)maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
Each charge particularises an alleged failure by the accused to take a reasonably practicable step to eliminate or reduce the identified risk to employees.
The accused faces seven charges under s 23 of the OHS Act, which deals with duties of employers to other persons:
(1)An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
The s 23 charges mirror the allegations particularised in the s 21 charges.
The common elements of the offences charged under ss 21 and 23 of the OHS Act are:
(a) the accused was an employer;
(b) there was a risk in the working environment to health and safety of employees, or to others arising from the conduct of the mine;
(c) the accused failed to take an identified measure which would have eliminated or reduced the risk; and
(d) it was reasonably practicable in the circumstances for the accused to have taken that measure.
It is essential to keep in mind at all times that offences under ss 21 and 23 of the OHS Act are risk-based, not outcome-based. Materialisation of the risk is of evidentiary significance only.[6] In order to sustain a conviction the prosecution does not need to prove that the accused caused fire to enter the mine, the northern batters fire, or the emission of smoke from the northern batters fire, or that taking one of the identified measures would have changed the course of events at the mine on 9 February 2014.
[6]DPP v Vibro-Pile (2016) 49 VR 676 [10]; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50 [24].
Risk
The risk to which employees and non-employees were allegedly exposed is particularised in each charge as follows:
… was that posed by the spread of fire into the mine which could ignite the coal in the northern batters thereby contributing to the release into the air around them of smoke, fine particles and carbon monoxide thus exposing them to the inhalation of the smoke, fine particles and carbon monoxide emanating from the fire in the mine on and after 9 February 2014.
The accused submitted that the pleaded risk deals only with the spread of fire into the mine, and that while a potential further consequence of that spread is the coal igniting and releasing pollutants, the risk which the measures must address is the spread of mine into the fire.
The accused’s narrow conceptualisation of the risk is inconsistent with the provisions of the OHS Act, and with the case particularised against it. Sections 21 and 23 deal with risks to the health and safety of employees and non-employees which relate to the accused’s workplace, or the conduct of its undertaking. In this case, the particularised risk to the health and safety of employees and non-employees is from exposure to the inhalation of smoke, fine particles and carbon monoxide. The source of that smoke is coal ignited in the northern batters of the mine. The cause of ignition is external fire spreading into the mine. The focus of the case has been bushfire running or spotting into the mine resulting in ignition of coal on the northern batters, releasing smoke, fine particles and carbon monoxide into the atmosphere.
Consideration of measures to eliminate or reduce the risk is not limited to one event, being spread of fire into the mine, which, in combination with others, might lead to smoke being emitted into the atmosphere. A measure might address the risk by reducing the likelihood of fire entering the mine, or of coal in the northern batters being ignited if it did. Equally a measure might address the risk by increasing the likelihood of fire in the northern batters being extinguished or limited in size, or by protecting employees and others from inhalation of smoke from the fire.
Charges 1 and 2: risk assessment
The measure particularised in charges 1 and 2 which the prosecution alleges would have eliminated or reduced the risk is:
(f)HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by:
i.Failing to perform an adequate risk assessment as to the possibility of fire from an external source such as bushfire in the northern batters (which are defined by markings and labels on Annexure A) (“the northern batters”) in accordance with Occupational Health and Safety Regulations 2007 (Vic) r.5.3.7, 5.3.8 and 5.3.9; and/or
ii.Failing to perform an adequate risk assessment within the meaning of Occupational Health and Safety Regulations 2007 (Vic) r. 5.3.23.
iii.Failing to perform an adequate risk assessment as to the possibility of fire in the northern batters from an external source such as bushfire in accordance with the Occupational Health and Safety (Mines) Regulations 2002 (Vic) r. 301, 302 and 303 during the time they were in force.
(g)It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by ensuring:
i.It performed an adequate risk assessment in accordance with the report of GHD Consultants to HPC dated December 2008 which required, inter alia, that “A risk assessment should be undertaken on the non-operational areas to determine if further prevention work is required. The risk assessment should include a Cost/Benefit Analysis”; and/or
ii.It performed an adequate risk assessment as to the possibility of fire in the northern batters from an external source such as bushfire in accordance with Occupational Health and Safety Regulations 2007 (Vic) r.5.3.7, 5.3.8 and 5.3.9; and/or
iii.It performed an adequate risk assessment within the meaning of Occupational Health and Safety Regulations 2007 (Vic) r. 5.3.23.
iv.It performed an adequate risk assessment as to the possibility of fire in the northern batters from an external source such as bushfire in accordance with the Occupational Health and Safety (Mines) Regulations 2002 (Vic) r. 301, 302 and 303 during the time they were in force.
The accused
The accused submitted that conducting a risk assessment is inherently incapable of amounting to a measure which would have reduced the pleaded risk. On a conceptual level, a risk assessment is an exercise by which risks are identified and analysed. As a result of conducting such an exercise, an employer might then identify measures which should be taken to reduce or eliminate risks. It is those measures which may be capable of eliminating or reducing risk. A risk assessment cannot, of itself, eliminate or reduce risk. If the prosecution intended to put a case that had an appropriate risk assessment been conducted one or more particular measures would have been identified and taken, then it is those measures which should be charged and particularised, not the risk assessment itself. Further, in this case there is no evidence connecting the alleged deficiencies in risk assessment with any particular measure, let alone capable of proving that conducting such a risk assessment would, not might, have led to such a measure being adopted. No prosecution witness, expert or otherwise, was asked whether conducting a risk assessment of any particular kind would have led to the adoption of any particular measure which would have reduced risk. Nor is there any available inference that such would have occurred, let alone one capable of being drawn beyond reasonable doubt. For the jury to conclude that conducting any particular type of risk assessment would have led to a different measure being taken would be speculation. The experts called by the prosecution did not purport to say that if a risk assessment had been done in the recommended method a particular measure would have been identified. The only measure referred to by Professor Cliff was covering the northern batters with concrete, but he conceded he had done no detailed analysis of the viability or reasonable practicability of this method.
Prosecution
The prosecution submitted that all of the charges need to be considered in light of evidence about the following matters. First, the characteristics of brown coal, its combustibility and ability to be ignited. Second, that there were large areas of exposed coal in the northern batters, which had not been rehabilitated. Third, the prevailing weather conditions on 9 February 2014. Fourth, the presence of the Hernes Oak fire and its proximity to the mine and nearby plantations, and the risk posed given available fuel and the possibility of spotting. Fifth, the past history of the mine and the previous fires that had occurred. Sixth, evidence about firebugs or arsonists being prevalent within the Latrobe Valley. Seventh, evidence that application of water to exposed brown coal reduces the risk of fire and increases the effectiveness of suppression. Eighth, that there was a lack of reticulated water system in the northern batters. Ninth, that there was dried, dense, vegetation in the northern batters, on the face and the crest. Tenth, the requirement to act quickly to stop a small fire effectively becoming larger, achieved through firefighting resources and staffing. Eleventh, the size of the mine and its location and proximity to Morwell. The prosecution emphasised the charges are risk-based, and argued that the accused’s submissions focused on what did or did not occur on 9 February 2014.
In relation to charges 1 and 2 the prosecution relied on the evidence of Professor Cliff, who said the process of risk assessment includes introducing controls to reduce the level of risk to an acceptable level. That evidence is capable of satisfying the third element, because an adequate risk assessment will effect minimisation or reduction of the risk. It is sufficient that charges 1 and 2 specify an adequate risk assessment to reduce risk, without specifying the particular controls which would be introduced by the risk assessment to affect that outcome.
Analysis
Evidence was given by two experts in risk assessment. Professor Cliff described a risk assessment as follows:
A risk assessment is a process followed whereby um people identify potential harm and the likelihood of that harm occurring, and due to a cause or series of causes. They then evaluate the net likelihood or consequence of that harm. So it’s the likelihood times like consequence ah if you like, to gain a ranking of that risk, and then people, based upon that level of risk, introduce controls to reduce the level of risk to an acceptable level.
The report for major mining hazards prepared by consultant GDH for the accused (Exhibit D015) details a model process for a risk assessment reflecting an Australian and international standard. In the model, under the heading ‘Treat Risks’ are the following:
• Identify treatment options.
• Evaluate treatment options.
• Select treatment options.
• Prepare treatment plans.
• Implement plans.
Bowtie diagrams, which Professor Cliff described as visualisation tools, are used in the same report. The mine fire bowtie includes bushfire as a possible cause, and sets out a range of controls used to reduce the risk of bushfire resulting in mine fire, and to reduce the consequences of mine fire if it occurs. One criticism Professor Cliff made of that bowtie was that there were no critical controls to prevent bushfire causing mine fire. He said a critical control is one that must be in place and must be effective to prevent the harm. Another criticism he made was that many things listed as controls were just documents or policies. He said in a bowtie he would expect to see the actual controls, the things that are actually done or can be implemented, that would affect control. Professor Cliff described the need, as part of the risk assessment, to review the effectiveness of controls. He described risk assessment as a continuous process which responds to events such as previous fires, and changes such as the size of the mine, the condition of the batters and vegetation. He said he would expect a formal risk assessment process to be carried out at a major coal mine on an almost continual basis over the year, over a range of topics. He would have expected the mine to be broken into four or five areas to address peculiarities in the non-operational areas, and for there to be a risk assessment of the northern batters, which did not have the same degree of controls in place as the production areas.
Professor Cliff referred to controls, including replacing water sprays which had been removed in the non-operational areas, because rehydration dramatically reduces the reactivity of brown coal, and reducing vegetation to improve access and because very dry vegetation would be a very easily ignited receptor for embers coming into the mine. He said with due diligence the size of the fire could have been vastly mitigated, if not completely prevented, with reasonable measures of control.
Dr Standish said the extent of fuel in the mine was a significant risk which he would have expected to be addressed with further controls and mitigation measures. On 9 February 2014 key infrastructure became unavailable during a critical phase in the fire growth. He would have expected, once you thought about fuel load, that you would respond by ensuring alternative power which was robust and able to survive credible events would have been in place, so that pumps were available for firefighting. Dr Standish also referred to controls, such as an operational reticulated water system with capacity to wet down coal and deal with any spot fires, and staffing levels sufficient to respond as required.
Mr Incoll, who was a consultant in relation to bushfire risk and associated matters, said the best prevention methods for brown coal fires include covering it with non-flammable coating (ie earth) or raising the moisture content of the coal. If coal or vegetation has been wetted down, then it will not catch fire. Wetting down of operational areas was very successful in preventing the ignition there, as there was very heavy spotting into that area. He said pipework had not been maintained in the northern batters and had to be replaced during the fire. There was not effective fire protection of exposed coal faces in the worked out batters of the mine if the sprays were not working. Additional crews to conduct spraying of the batters would have been providential given the Hernes Oak fire was not controlled, the fuel that was in close proximity to the mine, and the weather conditions. He said senior managers were extremely important due to their knowledge of systems and processes, and ability to bring in reinforcements, liaise with the CFA, set up headquarters and control and coordinate the operation. He said unfortunately in this case they all seemed to have taken leave which hampered the mine staff’s efforts to fight fire in the mine. Mr Incoll said he would have thought if the weather forecast had been taken into consideration for the weekend of 9 February 2014, a much larger crew would have been rostered on.
There is evidence which is capable of supporting a conclusion that the process of risk assessment includes consideration and implementation of controls to reduce the likelihood of an unwanted event occurring, and to reduce the consequences of the event if it does occur. Professor Cliff, Dr Standish and Mr Incoll gave evidence about the sort of controls they would have expected to be implemented in the northern batters to reduce the risk of mine fire. That evidence is capable of supporting a finding that an adequate risk assessment in relation to fire in the northern batters would have included implementation of controls which would reduce the risk of exposure of employees and others to inhalation of smoke, fine particles and carbon monoxide emitted by coal fire in the northern batters. I reject the accused’s application in respect of charges 1 and 2.
Charges 5 and 6: vegetation on the crest of the northern batters; and charges 7 and 8: vegetation on the face of the northern batters
The particulars to charges 5 and 6 allege:
(f)HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to slash vegetation on the crest of the northern batters so that vegetation should consist primarily of scattered, tall, clean boled trees that had firm bark and an overall crown cover of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that were kept short by grazing or mechanical means during those periods of high rural fire risk so as:
(i)to reduce vegetation and therefore the chance for fire to take hold and
(ii)to allow access to the source of the fire for those fighting any fire.
(g)It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by slashing the crest of the northern batters so that as at 9 February 2014 there was a vegetation coverage that consisted primarily of scattered, tall, clean boled trees that had firm bark and an overall crown cover of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that were kept short by grazing or mechanical means during those periods of high rural fire risk so as:
(i)to reduce vegetation and therefore the chance for fire to take hold and
(ii)to allow access to the source of the fire for those fighting any fire.
The particulars to charges 7 and 8 allege:
(f)HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to slash vegetation on the face of the northern batters so that vegetation should consist of no more than scattered, tall, clean boled trees that had firm bark and an overall crown cover of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that were kept short during those periods of high rural fire risk so as:
(i)to reduce vegetation and therefore the chance for fire to take hold and
(ii)to allow access to the source of the fire for those fighting any fire.
(g)It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by slashing the face of the northern batters so that as at 9 February 2014 there was a vegetation coverage that consisted of no more than scattered, tall, clean boled trees that had firm bark and an overall crown cover of less than 35% (over any given treed area) with a minimum of 3 metres of open space between crowns of individual trees; and grass and herbaceous understoreys that were kept short during those periods of high rural fire risk so as:
(i)to reduce vegetation and therefore the chance for fire to take hold and
(ii)to allow access to the source of the fire for those fighting any fire.
Accused
The accused conceded there was some limited evidence to suggest that, in isolated portions of the crest above the northern batters, vegetation exceeded the concentration particularised in charges 5 and 6. However, it was submitted there was no evidence that reducing the concentration of vegetation in those specific locations would have reduced the risk of fire spreading into and igniting the coal in the northern batters.
The accused accepted there was clear evidence that in some parts of the northern batters vegetation exceeded the standard set out in the charges, but submitted there was no evidence that reducing the concentration of vegetation to below the level set out in the particulars would have reduced the risk of fire igniting the coal in the northern batters. No witness gave evidence comparing vegetation exceeding the standard and vegetation under the standard. There was no evidence supporting the proposition that the risk would be reduced by reducing the amount of vegetation to that set out in the standard. No witness said the spread of fire in vegetation is more likely than spread of fire in bare, exposed coal, and there was evidence to the contrary.
Prosecution
The prosecution submitted the charges are based on the mine’s own policies in relation to vegetation, the purpose of which was to reduce the risk of fire. There was evidence from former mine employee Mr Brown about what used to occur in the past in relation to removal of vegetation, and evidence about vegetation removal that has occurred since the mine fire in the context of fire policy and practice, and the reduction of risk. Dr Gaulton gave evidence that vegetation in the mine provides an additional source of fuel and can spread combustion. Mr Lapsley said the fire was initially in vegetation in difficult terrain. The fire protection guidelines refer to the practice of avoiding dense clumps of trees and shrubs. Professor Cliff said vegetation was very dry and easily ignited by embers from any source. Access was a significant issue recognised in the report following the 2008 fire in the southern batters, and there is evidence from photographs of the northern batters and videos taken by Mr Mauger that leaves open to the jury a conclusion reducing vegetation to an acceptable level would reduce the risk. The prosecution acknowledged evidence of vegetation exceeding an acceptable level was stronger in relation to the face of the northern batters than the crest, but added evidence shows the presence of eucalypts on the crest, and the propensity of eucalypts to aid spotting and the spread of fire.
Analysis: charges 5 and 6
The measure particularised in charges 5 and 6 is extracted from Part 6.3 – External Protection Timbered Areas of the Mine Fire Service Policy and Code of Practice 2013, which states:
The Director of Mining is responsible for the management of treed and forested areas under his control to ensure the least possible fire hazard to the mine consistent with operating and environment requirements.
There is limited evidence that on 9 February 2014 vegetation in some areas of the crest above the northern batters exceeded that prescribed in the measure. A photograph taken by Mr Mauger (Exhibit P100) may show trees which exceed the prescription. There are two photographs of the northern batters taken by Mr Prezioso on the afternoon of 9 February 2014 which are in evidence (Exhibits P116 and P117). However, these photographs were taken from the southern side of the mine. While some vegetation can be seen in the photographs, it is difficult to see where the crest of the mine is, and what vegetation is shown above the crest. Mr Tomlin took a series of 10 photographs on 27 August 2014, a number of which show live vegetation and burnt vegetation on the crest above the northern batters. No witness was asked to describe the vegetation on the crest of the northern batters on 9 February 2014, the degree to which vegetation exceeded the prescribed standard, or what effect vegetation exceeding the standard had on the risk of fire spreading into the northern batters.
Mr Incoll and Mr Lapsley gave evidence about the availability of fuel and the spread of fire. It is open to the jury to conclude that the risk of fire spreading into the mine and igniting the northern batters was increased by fuel being available on the crest above the batters.
However, for the prosecution to succeed, there must be evidence capable of supporting the conclusion that reducing the level of vegetation on the crest of the northern batters to the level prescribed in the charge particulars would have reduced the likelihood of fire igniting the northern batters. Because there is very limited evidence as to the degree to which vegetation on the crest exceeded the standard, and where on the crest this occurred, the evidence does not enable the jury to conclude where on the northern batters, and by how much, vegetation exceeded the prescribed level, or what effect reducing vegetation to the prescribed level in those areas would have had on the likelihood of fire spreading into and igniting the northern batters.
I will grant the accused’s application in respect to charges 5 and 6.
Analysis: charges 7 and 8
There is clear evidence that vegetation on the northern batters exceeded the standard prescribed in charges 7 and 8. The charges allege that vegetation should have been reduced to the prescribed standard to reduce the chance of fire taking hold on the northern batters, and to allow access to the source of fire for those fighting any fire.
The checklist for firefighting equipment annual inspection for 2013 recorded the following remedial actions and comments in respect of the northern batters:
Vegetation across all levels need clearing.
Mr Harkins said there was vegetation across all levels of the northern batters on 9 February 2014, so the remedial actions had not been completed.
Dr Gaulton said vegetation on batters is undesirable because it is an additional source of organic material which, if dry, could help to spread combustion.
Mr Lapsley described the first part of the mine fire as burning vegetation, which he said would have been 100% cured, and was an available fuel.
Mr Incoll said on a high fire danger day, there was quite a bit of drying vegetation on the northern batters open to the spread of fire if an ember were to get into it, igniting first, then spreading to a coal fire. He said the easiest way to clear vegetation is to stop it in the first place, and that spraying the areas with herbicides from a helicopter would work.
Professor Cliff referred to the need for risk assessment to take account of the fact that there was a lot of vegetation growing in the northern batters. He said embers can travel several kilometres, and you need to look at the potential targets and evaluate the susceptibility of those potential targets to igniting, and consider the controls you have to have in place to prevent that from happening. He said the condition of the coal in the abandoned areas is much more susceptible to ignition, given also the catalyst of the dry vegetation in the abandoned areas. The documents he reviewed did not refer to the risk scenario of vegetation in the worked out batters. Given the amount of vegetation that was existing, which impacted the capacity of mine site personnel to access some of the abandoned areas, and access some of the sprinklers, he would have expected such an analysis. He said in the northern batters the structure of the coal would have been allowed to degrade quite badly, and the vegetation was a real issue, because very dry vegetation would be a very easily ignited receptor for embers coming in.
A number of the photographs and videos taken by Messrs Shanahan, Mauger and Prezioso on 9 February 2014 show the vegetation which existed on the northern batters at the time. That evidence is capable of supporting a conclusion that dense vegetation across much of the northern batters significantly exceeded the standard prescribed in the charges, and that vegetation was a barrier to access by fire hoses or other equipment to spot fires if they occurred. Evidence to which I have referred is capable of supporting a conclusion that the amount of vegetation on the northern batters was relevant to the risk of spot fires taking hold and fire spreading.
Taken together, this evidence is capable of supporting the conclusion that reducing the level of vegetation to the prescribed standard would have reduced the likelihood of fire taking hold on the northern batters, and would have improved access to the source of the fire for those fighting the fire.
The accused’s application that there is no case to answer in respect of charges 7 and 8 is rejected.
Charges 9 and 10: wetting down
The measure set out in the particulars to these charges is:
(f)HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to begin wetting down the northern batters with water from about 1145 hours on 9 February 2014 given:
i.The declared total fire ban for 9 February 2014;
ii.The predicted temperature of about 40 degrees on 9 February 2014;
iii.The weather forecast on 8 February 2014 for 9 February 2014 which predicted strong north-westerly winds ahead of a south-westerly change at lunchtime;
iv.The fire danger rating of extreme for 9 February 2014;
v.The humidity reading of 8 February 2014 and for 9 February 2014 up to 1400 hours;
vi.The Phoenix Rapidfire modelling performed by the Incident Control Centre provided to Mr. Alan Roach and Mr. Steven Harkins by email on 8 February 2014;
vii.The presence of the Hernes Oak fire and the Driffield fire near to the mine boundaries;
viii.The presence of eucalyptus and pine plantations in the vicinity of the mine.
(g)It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by having begun the wetting of the northern batters with water by about 1145 hours on 9 February 2014.
Accused
The accused submitted the premises for these charges had not been made out, because at 11:45am the Driffield fire had not been lit, and the Hernes Oak fire had not escaped containment lines. There is no evidence connecting the effectiveness of beginning wetting down the northern batters to 11:45am or any other time. Further, there is no evidence that any particular amount of wetting down would reduce risk. The evidence that wetting coal reduces flammability was given in general terms. Mr Incoll was unable to quantify how wet coal would need to be, or how quickly it would dry.
No evidence was called from the person in charge of the 1 x 7 crew, Dean Suares, who was the only person in a position to explain why wetting down was done in particular places and at particular times. There is no evidence that all areas of the mine could be wetted down with the reticulation system at the same time, and there was substantial evidence to the contrary. In the circumstances, the prosecution cannot prove that wetting down the northern batters from 11:45am was reasonably practicable without knowing why Mr Suares chose not to do so.
Prosecution
In relation to the time of 11:45am, the prosecution relied on sub-parts i to viii, to particular (f), excluding reference to the Driffield fire. In particular, the prosecution relied on the predicted weather and the predicted change in weather arriving early in the afternoon of 9 February 2014. After receiving the Phoenix model on the afternoon of 8 February, Mr Harkins emailed Mr Roach saying, ‘[i]t looks like my northern batters are on fire’. That prediction was made on the basis of the Hernes Oak fire and the weather forecast. At 11:38am on 9 February Mr Roach said he spoke to Mr Demetrios, who confirmed the weather for the afternoon was to be as forecast. This was evidence that the risk had not ameliorated, and justified nominating the time to commence wetting down as 11:45am. Other times during the morning could equally have been nominated. The substance of the allegation is that wetting down needed to commence much earlier than was done. There does not need to be precision or some sort of scientific evidence called in order to show that wetting down coal is effective in either stopping the ignition of fire or stopping the spread of fire. The benefit of wetting down coal is noted in the mine’s own policies and procedures. Evidence was given by Mr Brown of the previous practice of wetting down non-operational areas on a rotational basis. When the 1 x 7 crew learned at about 1pm that the Hernes Oak fire had broken its containment line, members of the crew were immediately directed to start wetting down the northern batters. Experts, Mr Incoll and Professor Cliff, gave evidence that increasing the moisture content or rehydrating brown coal reduced the risk of ignition and spread of fire, which was consistent with measures recommended in the 1944 Royal Commission report. All of this evidence, if accepted, leaves open to the jury the conclusion that had wetting down commenced on the northern batters at about 11:45am, the risk of fire igniting and spreading would have been reduced. Measures adopted by the mine since the fire included the requirement to wet down the northern batters on days of high fire danger, which is evidence of the practicability of the pleaded measure.
Analysis
The reports of various fires, commencing with the Royal Commission report into the fire at the Yallourn mine on 14 February 1944, and the mine’s policy and procedure documents, emphasise the importance of wetting down exposed coal to prevent and suppress fire.
Mr Mauger said the 1 x 7 crew was told shortly before 1pm that the Hernes Oak fire had broken containment lines and flared up, and that some members of the crew were then directed by supervisor Mr Suares to turn on sprays to wet down the northern batters. The inference is open that the reason for doing so was to reduce the risk of fire igniting in the northern batters. This means wetting down only commenced in parts of the northern batters sometime after 1pm, at about the same time Mr Mauger said burning embers were entering the mine from the Hernes Oak fire.
Mr Lapsley said the practice of wetting down coal on high fire danger days was standard, with the aim that if a fire does spot or attempt to start, the surface is wet and it is able to be suppressed. He said the sprinklers are in the mine to put water on top of the coal.
Dr Standish said from his review of the records he determined that on 9 February 2014 there had been effective wetting down in the production area of the mine, but he could not see evidence of significant wetting down in the northern batters before the fire broke out.
Mr Incoll said once brown coal is exposed it weathers and fritters into dust, which becomes quite flammable. He said the solution of keeping the coal moist is obvious, and if coal or vegetation has been wetted down then it will not catch fire. Wetting down of the operational areas was successful in preventing ignition, as there was very heavy spotting into that area. He said questions of the degree of wetness required to stop coal from being combustible, and the rate at which it can dry out in certain conditions, were outside his expertise. The solution to the issue of coal drying out is to wet it again in a cycle using sprays.
Professor Cliff said the key to preventing fires is to keep the coal separate from the air. One way of doing this is rehydrating it. The structure of the coal is that it consists of lots of little holes or pores. If those pores are full of water then obviously the air cannot get in there. But if the coal dries out like a sponge, so that there is not just the external surface, but also the little holes where air can get in, that dramatically increases the reactivity of the coal. He said rehydrating the coal can dramatically reduce its capacity to react, that is, to react with oxygen and burn. Professor Cliff’s evidence is capable of supporting a conclusion that the degree of reactivity of brown coal reduces with increasing hydration of the coal, and that the likelihood of coal igniting and the degree to which it burns and fire spreads will depend in part on the degree to which the coal is hydrated.
It was open to the jury to accept that as at 11:45am on 9 February 2014 the circumstances were as set out in particular (f) to these charges, save for the existence of the Driffield fire which did not ignite until shortly before 2pm. The evidence is easily capable of supporting a conclusion that 9 February 2014 was a day of extreme fire risk in the Latrobe Valley and at the mine, and that the risk would be greatest from the early hours of the afternoon.
It is important to keep in mind that these are risk-based offences, and that the third element of each offence is made out if it is proved that the identified measure would have reduced the risk.
The prosecution might have particularised a different time on the morning of 9 February 2014 at which wetting down of the northern batters would have reduced the risk it identified. However, that is not to the point. The evidence is capable of supporting a conclusion that, had wetting down of the northern batters commenced at 11:45am, and continued using sprays in a cycle to the extent available having regard to other needs around the mine, the identified risk would have been reduced. Evidence that sprays were turned on after 1pm, and that the mine’s practices since the mine fire have changed to include the need to wet down non-operational areas of the mine on total fire ban or extreme fire danger days, is capable of supporting the conclusion that it was practicable to wet down areas of the northern batters in a cycle, turning sprays on and off as required.
The accused’s application in respect of charges 9 and 10 is rejected.
Charges 11 and 12: alternate power supply
This measure is set out in the particulars as follows:
(f)HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to install an alternate power supply to the mine, particularly to enable the powering of the mine fire water system, in the event that the poles and/or wires carrying power into the mine situated atop the northern batters failed.
(g)It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by having:
i.installed an alternate supply of external power into the mine by means of the routing of the alternate cables to the south west of the mine;
ii.the existing cables atop the northern batters laid underground;
iii.a generator and/or diesel pumps as alternate systems to power the mine fire water system.
Accused
Power supply to the mine came from SP AusNet. No witness was called from SP AusNet, and there was no evidence the accused had any ability to affect the way SP AusNet structured the power supply to the mine. With respect to the first alternative, the evidence is that there was an alternative cable supplying electricity to the southwest of the mine. With respect to the second alternative, no evidence was led suggesting that to be reasonably practicable, even if the accused could persuade SP AusNet to do so. With respect to the third alternative, the highest the evidence got was that diesel pumps were installed at pump houses 50 and 53. The evidence was that no such equipment was viable to supply electricity to pump houses 50 and 53, or the dirty and clean water pump stations. Top up diesel pumps to pump houses 50 and 53 did not amount to alternate systems to power the mine fire water system. There is no evidence that installing diesel pumps at pump houses 50 and 53 would have reduced the risk of fire spreading into the mine, in that there is no evidence that they would have been effective to provide sufficient water to charge the fire system.
Prosecution
The prosecution accepted that in relation to reasonable practicability it was limited to the three alternatives set out in particular (g). It submitted that the option of supplying power direct from the power station fell within the first alternative. It was accepted there was no evidence which established the second alternative. The third alternative is established by the installation after the mine fire of diesel pumps as an alternate to electric pumps at pump houses 50 and 53. It was not necessary to establish that an alternate power supply was able to fully power the mine fire water system. If accepted, the evidence was sufficient to establish, for example, that diesel pumps at pump houses 50 and 53 could allow sufficient operation of the system to reduce the risk.
Analysis
Mr Polmear gave evidence that on 9 February 2014 power supply to the mine was from two SP AusNet 66 kV power lines, both of which approached the mine from the southeast, one then running along the northeast batters to the MWN substation, and the other along the southeast batters to the MWS substation. The 66 kV power lines originated from the Morwell terminal station operated by SP AusNet. The MWN and MWS substations were each able to power the clean and dirty water pump stations within the mine. He said the only possibility he could determine for the loss of power at the mine was that the SP AusNet 66 kV lines had a fault detection system which switched power off at the Morwell terminal station.
Mr Prezioso said:
---Um there was – the issue at – during – during that fire fight when we lost power to the substations because of the grid. We lost power from – for whatever reason. Um so the alternative to that was to have a – a direct connection from the Hazelwood power station, which is the most obvious, we’ve got a power station there. Why can’t we utilise that. So that was put in place after the fire as well.
He said before February 2014 there was no ability to take power direct from the power station. Because they do not have access to that power any more they have installed diesel pumps at pump houses 50 and 53, which is the redundancy to cover power loss. He said the diesel pumps were able to achieve an equivalent of 2,000 litres per second, or probably more. He said it was not possible to install diesel generators that were sufficiently powerful to power the clean and dirty water pump stations.
Mr Shanahan said that demand on the afternoon of 9 February 2014 would have been around 3,000 litres a second if all the sprays that they could run were running. He said water from the Loy Yang pipe was about 200 litres per second, though Mr Brown said in his time it was 1,500 litres per second.
Dr Standish referred to the need for an alternative power supply which was sufficiently robust to survive credible events, and said one alternative was diesel powered backup pumps or generators. He said if you studied what water you needed then you would design a system to suit, and that could include diesel power to back up the system.
The evidence is capable of supporting the following conclusions:
(a) Although there were redundancies in the power supply to the mine fire water system in February 2014, each depended on SP AusNet power supply which came from a common source, and that a failure at the common source would result in loss of power at the mine.
(b) Practicable alternative sources of power supply to the mine fire water system were a supply of power direct from the Hazelwood power station, or from diesel pumps, at least at pump houses 50 and 53. Evidence given by a number of witnesses, confirmed by the schematic of the reticulation system (Exhibit P006, p51) show that pump houses 50 and 53 can be used to supply the C and D tanks which feed the reticulation system. Mr Polmear said the depth of the mine made it necessary to reduce pressure in the reticulation system at the bottom levels, and to boost pressure at the top levels.
I disagree that diesel pumps do not amount to alternate power to the mine fire water system. The diesel pumps produce power to transfer water from the cooling ponds to the C and D tanks, which feed the reticulation system. The evidence is capable of supporting a conclusion that diesel pumps could have been used to operate the reticulation system on the northern batters to a sufficient degree to reduce the identified risk. The jury is not bound to conclude that 2,000 litres per second is the limit of the capacity of diesel pumps to supply water to the fire water system if required.
The prosecution accepted they were bound by the reasonably practicable alternatives pleaded in particular (g) to these charges. I do not accept that supplying power direct from the power station comes within the alternative of installing an alternate supply of external power into the mine by means of the routing of the alternate cables to the southwest of the mine. No other case was advanced by the prosecution to make out this alternative.
I conclude there is a case to answer on the evidence in relation to charges 11 and 12, limited to the reasonably practicable alternative set out in particular (g) iii.
Charges 13 and 14: staffing levels
This measure is set out in the following particulars to charges 13 and 14:
(f)HPC failed to take all reasonably practicable steps to eliminate or reduce the risks to its employees by failing to maintain a workforce and level of staffing at the mine of sufficient numbers and expertise to suppress and fight instantly any fires that might take hold in and around the mine during the weekend of 8 and 9 of February 2014.
(g)It was reasonably practicable for HPC to have eliminated or reduced the risk to its employees by ensuring that it maintained a sufficient workforce and staff at the mine during the weekend of 8 and 9 February 2014 trained, prepared, equipped and ready to suppress and fight instantly any fires that might take hold in and around the mine during the weekend of 8 and 9 February 2014 given:
i.the declared total fire bans for 8 and 9 February 2014;
ii.the predicted high temperatures for 8 and 9 February 2014;
iii.the weather forecast for 8 and 9 February 2014 which predicted strong north-westerly winds ahead of a south-westerly change at lunchtime;
iv.the fire danger rating of extreme for 9 February 2014;
v.the humidity reading for 8 and 9 February 2014 up to 1400 hours;
vi.the Phoenix Rapidfire modelling performed by the Incident Control Centre provided to Mr Alan Roach and Mr Steven Harkins by e-mail on 8 February 2014;
vii.the presence of the Hernes Oak fire and the Driffield fire near the mine boundaries;
viii.the presence of plantations of eucalyptus and pine plantations in proximity to the mine.
(h)Given the above factors the level of staffing and expertise required, but was not limited to:
i.calling in 2 or more of the 1 x7 crew;
ii.recalling senior mine personnel with responsibility for making key decisions such as the Emergency Commanders to fill roles in the Emergency Organisation structure (such as Mr Gary Wilkinson GDF Suez Mine Director, Mr James Faithfull, GDF Suez Technical Services Manager - Mine and Acting Mine Director, Mr Rob Dugan and Mr Stan Kemsley) by 1145 hours on 9 February 2014.
Accused
The accused submitted there is no evidence that calling in two or more workers would have reduced the risk of fire spreading into the mine on 9 February 2014. Extra workers would have had no effect on fire spreading into the mine, as distinct from containing it or putting it out once ignited. Further, evidence of the only witnesses with any connection to the issue, Mr Mauger and Mr Prezioso, was that extra manning would have made no difference. As to the allegation of recalling senior mine personnel, the evidence is that all available senior personnel attended the mine, including Mr Prezioso, Mr Harkins, Mr Faithful and Mr Dietvorst, as soon as practicable after it was plain that there was an immediate external bushfire risk to the mine, and/or that fires had broken out within the mine. The competence of Mr Prezioso and Mr Roach in their respective roles was not questioned. Further, there is no evidence why 11:45am was a time that additional persons should have been called in, and no evidence why other managers, Messrs Dugan, Faithful and Wilkinson, were not recalled at that time. Without such evidence it cannot be said to have been reasonably practicable to do so.
Prosecution
Because the charges are risk-based, what Mr Prezioso and Mr Mauger had to say about staffing levels and the events which unfolded on the afternoon of 9 February 2014 was of no consequence. There is evidence from a number of sources that the best way to fight fires in the mine is to hit them hard and hit them quickly. Mr Incoll said that staff numbers were inadequate in his view, and said that the presence of senior personnel is extremely important because of their knowledge and ability to call in extra resources.
Analysis
There is evidence capable of supporting the following conclusions:
(a) a bushfire approaching the mine from the west might result in spotting of embers into the mine;
(b) there were significant areas of exposed coal in the operating west field, the south-eastern batters, the eastern batters and the northern batters;
(c) embers are less likely to cause spot fires, and spot fires are less likely to take hold and spread, in areas of exposed coal which have been wetted down by spraying;
(d) the mine is large, and it takes significant time to move staff and equipment from one area to another across the mine; and
(e) it is critical to the prevention and suppression of fires that staff and equipment are available to respond quickly to the risk of fire and to fight spot fires when they occur. As an example, in the GHD report of the investigation into the October 2006 mine fire, the authors said, under the heading ‘Escalation’:
The significant factor in this fire was the escalation of a small fire into an uncontrollable fire within a short time due to extreme weather conditions and the delay in IPRH providing sufficient resources to combat the initial fire.
Mr Harkins said there were 35 staff at the mine before midday on 9 February 2014, 58 by 3:30pm, and 103 by 7pm. The jury might conclude there were no senior managers at the mine until Mr Harkins arrived at about 1:50pm.
Mr Roach said he arrived at the mine at 12:27pm on 9 February. At 12:45pm he opened the Emergency Control Centre, and started to tidy it up. However, he did not commence setting up the control centre until after 3pm, and Mr Prezioso did not take up the position as Emergency Commander until a short time later.
Dr Standish said in relation to staffing that you would consider staffing levels at the mine in the early 1990s, and increase the numbers to maintain an equivalent level of fire response capability as the mine grew and the scale of exposed batters increased.
Mr Incoll said additional crews available from early in the morning to conduct spraying would have been providential, given the Hernes Oak fire was not controlled, the fuel in close proximity to the mine, and the weather. The Hernes Oak fire was the trigger for needing higher levels of preparedness. The personnel that were at the mine were focused on protecting the operating areas, and had a fair way to travel to the worked out areas of the mine. With a weather forecast for the weekend of 9 February 2014, a much larger crew should have been rostered on. He said senior managers were extremely important due to their knowledge of systems and processes, and ability to bring in reinforcements, liaise with the CFA, set up headquarters, and control and coordinate the operation. He said in that regard he was talking about senior managers with the competence to set up the control centre, such as the mine manager or deputy mine manager.
The evidence is capable of supporting a conclusion that having additional 1 x 7 crew members at the mine from the morning of 9 February would have increased the capacity of the mine to wet down areas of exposed coal before embers entered the mine, and to respond more quickly and effectively to embers entering the mine and to spot fires in the northern batters if they occurred. Mr Incoll’s evidence is capable of supporting a conclusion that having senior mine managers at the mine from the morning of 9 February 2014 to fill roles in the emergency organisation structure, including emergency commander, and to take any other steps to which Mr Incoll referred, would have reduced the identified risk.
The application of the accused in relation to charges 13 and 14 is rejected.
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