Inspector Orr v Perilya Broken Hill Limited

[2018] NSWDC 28

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28
Hearing dates:	4/7/17 - 7/717; 10/7/17 – 14/7/17; 17/7/17 – 21/7/17; 26/7/17 – 27/7/17; 31/7/17 – 4/8/17; 7/8/17 – 11/8/17; 14/8/17 – 15/8/17; 17/8/17 -18/8/17; 21/8/17-22/8/17; 27/9/17 – 29/9/17; 20/11/17-23/11/17
Decision date:	28 February 2018
Jurisdiction:	Criminal
Before:	Kearns DCJ
Decision:	The elements of the offence have been proved beyond reasonable doubt against Perilya Broken Hill Limited in respect of particulars 12 (e), (f), (g); 13 (d), (f), (g); 14 (b); and 15 (a), (b), (c), (d), (e) of the Second Amended Summons. I find Perilya Broken Hill Limited guilty of the offence. I will list the matter for sentence on a date convenient to the parties.
Catchwords:	CRIMINAL LAW – PROSECUTION – WORK HEALTH AND SAFETY Duty of person conducting business or undertaking – duty in the case of careless or disobedient worker – whether there was a risk – whether risk foreseeable – whether duty to minimise risk arose where it could be eliminated – whether a risk analysis should have been undertaken and form thereof Fall down mine shaft – fall from bucket of a loader when working at height – whether breach of duty where worker was in bucket of loader contrary to employer’s policy Breach of duty – whether system for use of personal protective equipment (PPE) was appropriate – whether correct PPE used - whether PPE used was defective – whether JSA defective – appropriate procedures and content for JSA – whether defendant’s policy and prohibiting use of bucket of loader should have been in writing - whether defendant provided adequate information, training and instruction – whether defendant provided adequate supervision Mistake of fact – defendant’s belief that no one would use the bucket of the loader as a work platform and that nobody was required to work at heights – whether mistake of fact available to defendant – whether defendant’s belief reasonably held
Legislation Cited:	Work Health and Safety Act 2011 (NSW); Mine Health and Safety Regulation 2007; Occupational Health and Safety Act 1983
Cases Cited:	WorkCover Authority of NSW v Kellogg Aust Pty Ltd [1999] NSWIRComm 453; WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248; WorkCover Authority of NSW (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 Genner Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Guillarte) (2001) IR 57; Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; Safe Work NSW v Wollongong Glass P/L [2016] NSWDC58; WorkCover Authority of NSW (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153
Category:	Principal judgment
Parties:	NSW Department of Planning and Environment – Stephen James Orr, Investigator, Inspector and Manager, Regulatory Audit and Investigation (Prosecutor) Perilya Broken Hill Limited (Defendant)
Representation:	Counsel: Mr J Agius SC with Mr C Magee appeared for the Prosecutor; Mr B Hodgkinson SC with Mr M Shume appeared for the Defendant   Solicitors: Norton Rose Fulbright instructed by the Prosecutor; Colin Biggers and Paisley instructed by the Defendant
File Number(s):	2014/176345

TABLE OF CONTENTS

Judgment

Summary and the incident

Charge and plea

Some preliminary matters

Personnel of the defendant

Other personnel

The legislation

The risks

Particulars of the charge

Elements of the offence

The mining process relevant to the incident

A problem and the solution – inconsistent weights; calibrate the load cells

The development of the solution up to 23 May 2012

The steps taken following the exchange of emails in May 2012

The meeting of 5 June 2012

Events following the meeting of 5 June 2012

The day of the incident

Events following the incident

Analysis

(1) Was there a risk and what was the risk?

(2) Was the risk foreseen or foreseeable?

(3) What measures did the defendant take to address the risks?

(4) (a) Were the measures taken by the defendant adequate;

(b) if not, did the defendant’s failure cause Mr Pollard and/or Mr Rowbotham to be exposed to the risk?

Particular 12(a)

Particular 12(b)

Particular 12(c)

Particular 12(d)

Particulars 12(e) and 12(g)

Particular 12(f)

Particular 13(a), (b), (c)

Particular 13(d)

Particular 13(e):

Particular 13(f)

Particular 13(g)

Particular 14 (a)

Particular 14(b)

Particular 14(c)

Particular 15(a) and 15(d)

Particular 15(b)

Particular 15(c)

Particular 15(e)

Two further points

The four alternate measures

CONCLUSION

Judgment

Summary and the incident

1. On 8 June 2012, Mark Pollard fell down a haulage shaft at a mine at Wentworth Rd, Broken Hill (the mine). At the time of the incident, he was attempting to hang some weights from the bottom of a weigh flask. The purpose of this was to calibrate an instrument called a load cell or weigh cell which measured the weight of ore in the flask. The weights were in a metal basket and the weight to be hung was approximately 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was attempting to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft.

2. Mr Pollard was secured to the bucket by means of his personal protective equipment (PPE), being a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket.

3. In the course of undertaking the task, the weights and basket came out of the bucket and so did Mr Pollard. His lanyard snapped. Mr Pollard suffered a traumatic amputation of his right leg and other injuries.

4. The mine was operated by Perilya Broken Hill Limited, the defendant. It was a wholly owned subsidiary of Perilya Limited (Perilya).

5. Mr Pollard was employed by the defendant. Mr Rowbotham was also employed by the defendant. He was working with Mr Pollard at the time of the incident.

Charge and plea

6. The defendant is charged under s 32 of the Work Health and Safety Act 2011 (the Act). It is alleged it owed a duty to Mr Pollard and to Mr Rowbotham under s 19(1). It is alleged the defendant breached the duty it owed to Mr Pollard and the duty it owed to Mr Rowbotham, exposing them to risk of death or serious injury.

7. The defendant has pleaded not guilty.

Some preliminary matters

8. The mine is an underground mine going down 26 levels. Access to the lower levels from the surface is via shafts and roads.

9. There was some confusion and difference in terminology in describing different levels. This concerned the area around the 25 and 26 levels. It is sufficient for present purposes to note but a few things. Level 26 was the lowest level of the mine. Above that was level 25. In between, was a sub level described in different ways. I shall refer to it, as most did, as the 26 sub level. It was sometimes referred to in the evidence as the 25 ½ level.

10. Perilya has also been charged in respect of the incident with a breach of s 32. Both proceedings were heard together. There was evidence common to both sets of proceedings. There was also evidence that was limited to the proceedings against the defendant and evidence that was limited to the proceedings against Perilya. In considering my reasons and making my determinations, I have found it convenient to deal with the cases separately.

11. References to “Tab” refer to tab dividers in Exhibit PX 1, Volumes 1 to 18.

12. A number of persons is involved in these proceedings. It is useful at this point to identify some of them and their roles at the time of the incident.

Personnel of the defendant

13. Mr Slade

Mr Slade was employed by the defendant. He was the manager of mining of the defendant’s southern operation being the mine.

14. Mr Dally

Mr Dally was the superintendent of mine services and infrastructure.

15. Mr Tavian

Mr Tavian was a mine services shaft engineer and a maintenance planner.

16. Mr Gauci

Mr Gauci was a relief planner / relief supervisor. He had been since August 2011 and worked in the areas of shaft infrastructure and fixed plant.

17. Messrs Ridley and Harris

1. Mr Ridley and Mr Harris were shaft and fixed plant supervisors.

2. They worked on different “panels”.

3. Mr Ridley was the supervisor at work and Mr Harris was “off panel” and not at work at the time of the incident.

18. Mr Read

Mr Read was the electrical project coordinator. That was the equivalent of supervisor of underground electrical projects.

19. Mr Pollard

Mr Pollard was a rigger.

20. Mr Rowbotham

Mr Rowbotham was a platman and crusher operator. He also had rigging qualifications obtained in 2005 [1] . He did some work as an offsider to riggers.

1. Exhibit PX 1, Vol 11, Tab 328; T802

Other personnel

21. Mr Olds

1. Mr Olds was a loader operator employed by Consolidated Mining and Civil and he was a road crew supervisor which involved maintenance of roads underground at the mine.

2. He was the loader operator working with Mr Pollard and Mr Rowbotham at the time of the incident.

22. Mr Adams

1. Mr Adams was employed by Bobos Engineering Australia Pty Limited (Bobos) as Cranes Operations Manager.

2. He was involved in the provision of chains to the defendant for the task that was to be undertaken on 8 June 2012.

23. Mr Wood

Mr Wood was employed by A. Noble & Son Ltd as the Electronics Manager in the electronics division.

24. A. Noble & Son Ltd (Nobles)

Nobles is a company whose business included the sale and hire of load cells and NATA accredited calibration and recalibration of load cells. It supplied load cells to the defendant.

The legislation

25. Section 17 of the Act provides:

A duty imposed on a person to ensure health and safety requires the person:

(a)   to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

26. Section 18 of the Act provides:

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a)   the likelihood of the hazard or the risk concerned occurring; and

(b)   the degree of harm that might result from the hazard or the risk; and

(c)   what the person concerned knows, or ought reasonably to know, about:

(i)   the hazard or the risk; and

(ii)   ways of eliminating or minimising the risk; and

(d)   the availability and suitability of ways to eliminate or minimise the risk; and

(e)   after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

27. Section 19 of the Act relevantly provides:

(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

…

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety, and

(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 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.

28. Section 32 of the Act relevantly provides:

A person commits a Category 2 offence if:

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

(b)   the person fails to comply with that duty, and

(c)   the failure exposes an individual to a risk of death or serious injury or illness.

29. Section 244 of the Act provides:

1. For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

2. If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness.

3. If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.

The risks

30. The risks to which it is alleged Mr Pollard and Mr Rowbotham were exposed are set out in the Second Amended Summons [2] as follows:

(a)   being struck and/or crushed by the weight basket whilst the Workers used the bucket of the Loader as a means of transporting the weight basket;

(b)   being struck and/or crushed by the weight blocks and/or weight basket whilst the Workers used the bucket of the Loader as a work platform for the purpose of attaching and hanging the weight basket by chains from the base of the North Flask and South Flask;

(c)   impact or crush injuries from slipping or falling onto the edges of the Loader bucket;

(d)   falling from heights including down the Shaft while working in the proximity of the Shaft and/or in the void of the Shaft;

(e)   injury caused by the movement of the Loader, the bucket of the Loader, the weight basket and/or the weight blocks, which were being used to perform the Work or were in the vicinity of the performance of the Work.

2. [10] Second Amended Summons

Particulars of the charge

31. The particulars of the charge, as alleged in the Second Amended Summons, are as follows.

The particulars of the acts or omissions in failing, so far as is reasonably practicable, to eliminate or otherwise minimise the Risks

11   The Defendant failed to provide and maintain a work environment without risks to the health and safety of the Workers in that the Defendant failed to undertake the Task by either:

(a)   removing each of the un-calibrated Load Cells and fitting a pre-calibrated load cell (First Alternate Measure);

(b)   removing each of the un-calibrated Load Cells and returning them to the Load Cell supplier for it to undertake the recalibration of the Load Cells (Second Alternate Measure);

(c)   adding a known weight (mass) of ore into the North Flask and South Flask via a calibrated conveyor weightometer and comparing the readings from each of the Load Cells to the known weight of ore in the North Flask and South Flask and electronically adjusting each of the Load Cells (Third Alternate Measure);

(d)   an in situ adjustment of each of the Load Cells using a ‘test rig load cell’ and ‘pull down rig’ and comparing the readings from the strain gauge processor of the test rig load cell to the display on the RM4 unit of each of the Load Cells, and electronically adjusting the RM4 unit of each of the Load Cells (Fourth Alternate Measure).

Further alternative measures

12   In the event that the Defendant, rather than adopting the First Alternate Measure or Second Alternate Measure or Third Alternate Measure or Fourth Alternate Measure, undertook the Task by the method devised as set out in paragraph 5 hereof, the Defendant should have implemented the following measures (Control Measures):

(a)   the undertaking of a risk assessment of the hazards and risks of injury arising from the option selected for the adjustment of the Load Cells, the measures to be implemented to eliminate or minimise the hazards and risks the person responsible for the development and implementation of safe work procedures for adjustment of the Load Cells; (Risk Assessment)

(b)   the development, implementation and enforcement of a safe work procedure for the Work arising from the Risk Assessment; (Safe Work Procedure)

(c) the preparation of a “safe work method statement” for the Work as required by regulation 51 of the Mine Health and Safety Regulation 2007; (SWMS)

(d)   the provision of plant and equipment that was suitable and safe for undertaking the Work namely:

(i)   plant and attachments designed to be used as a load lifting device for the transport and lifting of the weight basket, such as a loader fitted with a forklift attachment; and

(ii)   the provision of plant and attachments suitable for the purpose of attaching the weight basket to the base of the North Flask and South Flask;

(collectively the Safe Plant and Equipment)

(e)   the provision of fall arrest equipment such as harnesses, lanyards and personal energy absorbers which were fit for the purpose of undertaking the Work; (PPE)

(f)   the development, implementation and enforcement of a documented policy prohibiting the use of the buckets of loaders as work platforms or for working at heights (Work Platforms)

(g)   ensure that it had and enforced a system for the use of PPE namely:

(i)   an inspection before being available for use by the Workers;

(ii)   periodic inspections by competent persons to determine whether it was in safe condition;

(iii)   the tagging and removal from service of any unsuitable or not fit for purpose PPE; and

(iv)   the requirement that PPE be stored in the safety store and issued on a shift by shift basis,

(collectively the Fall Arrest Systems)

13   The Defendant failed to ensure the provision of adequate information, training and instruction that was necessary to protect the Workers from the Risks in relation to:

(a)   the Risk Assessment;

(b)   the Safe Work Procedure;

(c)   the SWMS;

(d)   the Work Platforms;

(e)   the Safe Plant and Equipment;

(f)   the PPE;

(g)   the Fall Arrest Systems.

14   The Defendant failed to ensure the provision of refresher training to the Workers in relation to:

(a)   working at heights;

(b)   rigging work;

(c)   developing risk assessments.

15   The Defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to take the following measures:

(a)   assess and review the adequacy of the procedures developed for undertaking the Work to ensure that it identified the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work;

(b)   assess the adequacy of the implementation of the Control Measures;

(c)   ensure that the proposed method of conducting the Work was assessed and approved by a supervisor or other suitably qualified person prior to the Work commencing, as being adequate to address the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work;

(d)   assess the adequacy of the Job Safety Analysis which had been developed to ensure that it identified the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work;

(e)   ensure that a suitably qualified and competent person was present when the Work commenced and while the Work was being performed to ensure that the Control Measures were in place and were being implemented to eliminate or otherwise minimise the Risks to the Workers to the extent reasonably practicable.

32. These particulars have been further refined by the provision of further and better particulars on several occasions from the prosecutor’s solicitors to the defendant’s solicitors.

Elements of the offence

33. The prosecutor must establish beyond reasonable doubt:

(1)   that the defendant was conducting a business or undertaking;

(2)   that Mr Pollard and Mr Rowbotham were workers engaged by the defendant.

Those matters are not in contest and they establish that the defendant had a health and safety duty within the meaning of s 32(a) of the Act.

34. The prosecutor must also establish beyond reasonable doubt:

(3)   that the defendant failed to comply with its health and safety duty to Mr Pollard or Mr Rowbotham or both;

(4)   that the failure exposed Mr Pollard or Mr Rowbotham or both to risk of death or serious injury.

The mining process relevant to the incident

35. There was an amount of evidence about the mining process, much of which I do not find necessary to consider. Significantly, after a number of processes, ore found its way onto an ore conveyor. It then found its way onto the tail end of a flask conveyor. It proceeded along the flask conveyor towards the head end where it was fed into the weigh flask. The flask conveyor fed in a set amount of ore. The ore was fed in at the top of the flask at the 25 level.

36. There was a north flask and a south flask. They were relatively close. The top of each flask was at the 25 level. The base of each flask was close to a platform above 26 sub level. Each weigh flask had four lifting lugs at its base.

37. The platform above the 26 sub level was a chequer plate platform with hand rails [3] . It was about 4x4.5m. It was accessible by ladder from the 26 sub level [4] .

    3. T265.07-.20

    4. Exhibit PX 1, Vol 16, Tab 425, p3506

38. The flask conveyor stopped loading the weigh flask when a set weight of ore had been loaded into the weigh flask. The weigh flask recorded the weight through a load cell. The load cell was located above the weigh flask and was connected by a cable to a RM4-SG Load Cell Monitor [5] .

    5. Exhibit PX 1, Vol 1, Tab 74

39. A load cell is a force transducer [6] . What it does and how it does it is highly technical. Again, there was an amount of evidence about this which I do not find necessary to consider. It is sufficient to note that the load cells were electronically connected to the monitor. The load cells were capable of detecting the weight of the flask and any material in the flask [7] , and could display the weight recorded in the flask [8] on the monitor of the RM4 Unit. The RM4 unit could then relay that information to another programmable logic controller which controlled the feed conveyors that transport ore into the flasks.

    6. T46.03

    7. Exhibit PX 3 [14]

    8. Exhibit PX 3 [15]

40. A skip came down the shaft. There was a magnet at the bottom of the skip, which picked up a sensor in the shaft and the skip stopped in a set location. The front of the flask had an air-operated arc door that opened and the ore in the flask went into the skip [9] . This occurred at the level close to the platform above the 26 sub level.

    9. T213.09-.12

41. The skip took everything that was in the flask. That could be as much as 13 tonnes or more [10] . It was not possible to part-empty a flask [11] . The skip was hauled up to the surface and the ore in the skip was dealt with and the skip was then returned [12] . The skip was lifted to the surface of the mine by a wire winding rope using a vertical hoist winder system [13] .

    10. T213.22

    11. T218.22-.24

    12. T213.29-.31

    13. Exhibit PX 3 [12]

42. The processes I have spoken about were fully automated and operated through a Honeywell computer system. That automation included the opening and closing of the door at the bottom of the weigh flask and the detection of the presence of the skip. It also included the operation of the winders and skips and conveyors [14] .

    14. T268.29-269.26

43. There were regular winder maintenance days at the mine. On these days, the skips were taken up to the surface and locked off at the surface. A platform was placed out below each skip covering off the top of the haulage shaft [15] . The whole system, including winder, was isolated [16] .

    15. T594.45-595.02

    16. T595.04-.10

A problem and the solution – inconsistent weights; calibrate the load cells

44. A problem had developed. There was a discrepancy between the weights being recorded on the monitor via the load cell and the weight of the ore going to the mill. That problem was apparent from January 2012.

45. A solution was devised. It was to test the calibration of the load cells on both flasks and to recalibrate if necessary. The manner in which this was to be tested was to hang a known weight from the bottom of the weigh flask.

The development of the solution up to 23 May 2012

46. There was history leading up to the implementation of the task on 8 June 2012, not all of which is necessary to record.

47. Mr Dally was asked by Mr Slade in January 2012 to investigate a means of putting a known weight under the weigh flasks to do a recalibration of the load cells [17] .

    17. T205.40

48. Mr Dally informed Mr Harris of the discrepancy and the proposed solution [18] . Mr Dally left it to Mr Tavian and Mr Gauci to come up with different options [19] .

    18. T395.16-.35

    19. T206.34

49. Mr Dally was thoroughly familiar with levels 25 and 26 and 26 sub level [20] . He said he went underground with Mr Ridley and Mr Gauci and inspected the area around 9 January 2012 [21] . The evidence around this is confusing. Documentary evidence supports the three of them were underground on 9 January 2012 [22] , but neither Mr Ridley nor Mr Gauci gave evidence of this inspection and it appears common ground that Mr Ridley did not become involved in this project until May 2012 [23] . I accept that Mr Dally undertook an inspection in January 2012. The area inspected was around 25 level and 26 sub level.

    20. T261.06 – 262.01

    21. T264.05; Exhibit PX 1, Vol 1, Tab 6, p12

    22. Exhibit PX 1, Vol 1, Tab 6, p12

    23. T526.27-.29

50. The platform at 26 sub level provided ready access to the lower lugs of the flasks [24] . Mr Dally thought the task of hanging the weights was a pretty simple task and he thought the job could be done from the platform above 26 sub level [25] . He thought there was no risk of falling from height [26] .

    24. T263.20

    25. T264.10; T265.37-266.10

    26. T263.28

51. Mr Tavian and Mr Gauci went underground on 18 January 2012 for an inspection. They were contemplating hanging a known weight being two 3 tonne weights from the bottom of each flask [27] . The inspection took about 45 minutes [28] .

    27. T507.19-.31

    28. T377.21-.28

52. They took photographs [29] of the flasks and load cells [30] . Mr Gauci added text to the photographs of the flasks [31] . He then distributed the marked-up photographs to Mr Dally, Mr Harris, Mr Tavian and Mr Ridley [32] .

    29. T474.43-.50; Exhibit PX 1, Vol 1, Tab 12

    30. Exhibit PX 1, Vol 1, Tab 9

    31. Exhibit PX 1, Vol 1, Tab 12

    32. T476.37-.42

53. The method that Mr Gauci envisaged would be used to suspend the weights from the flasks involved using a piece of mobile plant, known as a telehandler. The telehandler would be taken to the 26 sub level and used to lift and suspend one weight at a time from the flask using slings. Ropes would be dropped down from the platform above the 26 sub level and retrieved from the 26 sub level. The idea of this was that work would be done either from the platform above 26 sub level or from the 26 sub level without any need to enter the shaft or risk of falling into the shaft [33] . Mr Gauci committed the plan to writing, but for his own purposes only. He did not share that writing with anyone [34] .

    33. T507.21-510.12

    34. T477.37

54. Mr Tavian looked at the area and he also went looking for drawings in the defendant’s system. He was looking to see whether a weight could be hung cleanly [35] . He and Mr Gauci had discussions as to the best and safest way of doing the job [36] . They sought to identify risks and were satisfied that there were none [37] .

    35. T378.30

    36. T380.23, T506.28

    37. T380.27

55. At the 26 sub level, there was a gate across the level near the shaft [38] . There was also an RSJ at ground level, across the level just in front of the gate [39] .

    38. T509.10; Exhibit PX 1, Vol 16, Tab 425, p3507

    39. T403.06

56. The two 3 tonne weights were later delivered to 26 sub level [40] .

    40. T404.34

57. In January 2012, Mr Harris went underground with Mr Stephensen. Mr Stephensen was an electrician and he attended to electrical aspects. Mr Harris observed the filling of the flask to see that it was not overflowing. It was not [41] .

    41. T396.50

58. Mr Harris reported his observations to Mr Dally and Mr Hannigan [42] . Mr Hannigan was Mr Harris’s superintendent [43] . After reporting to Mr Dally and Mr Hannigan, Mr Harris discussed setting up the weights with Mr Dally and then with Mr Tavian [44] .

    42. T396.47

    43. T403.45

    44. T397.12-.23

59. On 24 January 2012, Mr Tavian raised work orders to “CHECK WEIGH CELL CALIBRATION” by installing weights under the flask. This was for both north and south flasks [45] . Both jobs have recorded in a work order “JOB STOPPED AFTER INCIDENT” [46] . The incident was the one to Mr Pollard on 8 June 2012, even though it was months after the work orders [47] .

    45. T332.26; Exhibit PX 1, Vol 1, Tab 16; Exhibit PX 1, Vol 1, Tab 18

    46. Exhibit PX 1, Vol 1, Tabs 17 and 19

    47. T209.42

60. There were exchanges of emails between the defendant and Nobles from January 2012 to May 2012. The emails were related to load cells, including the supply by Nobles to the defendant of new calibrated load cell systems. There were contractual negotiations and contracts were formed concerning this.

61. The narrative continues with the receipt by the defendant from Nobles of two new load cells. One was received on 14 February 2012 and the other on 3 May 2012 [48] .

    48. T376.16; Exhibit PX 1, Tabs 43 and 44, pp76B and 77B

62. On 16 February 2012, Mr Gauci generated Work Order No. 628957 to replace one of the flask load cells [49] . The Work Order specifies it as for the south side flask, but it was for the north side flask [50] .

    49. Exhibit PX 1, Vol 1, Tab 50

    50. T336.38-.45

63. On 17 April 2012, Mr Tavian generated Work Order No. 641240 for the North Flask to be removed and replaced. [51]

    51. Exhibit PX 1, Vol 1, Tab 49

64. On 23 April 2012, the task of removal and replacing the North Flask was completed. [52] On the same day, Mr Gauci recorded that the task of replacing the flask load cell on the north side was completed. [53] This work was also noted in the Perilya Daily Supervisor Handover Notes. It was recorded as completed in the record of the Perilya Southern Operations Team Meeting on 24 April 2012 [54] .

    52. Exhibit PX 1, Vol 1, Tab 49

    53. Exhibit PX 1, Vol 1, Tab 50

    54. Exhibit PX 1, Vol 1, Tab 54

65. On 21 April 2012, one of two new load cell units that had been ordered by the defendant was calibrated by Nobles and a calibration report was prepared on 23 April 2012 [55] . The second of the new load cells was calibrated by Nobles on 27 April 2012 and a calibration report was prepared on 30 April 2012 [56] .

    55. Exhibit PX 1, Vol 1, Tab 52

    56. Exhibit PX 1, Vol 1, Tab 56

66. On 15 May 2012, the defendant raised two work orders in respect of the South Flask. The first work order in time was for “RECALIBRATE WEIGH FLASK WEIGHT UNIT” [57] . This was raised by the electrical department of the defendant. The second was for “REPLACE LOAD CELL” [58] . This was raised by the mechanical department. This was for one of the new load cells [59] . The new one was to be calibrated after it was fitted [60] .

    57. Exhibit PX 1, Vol 1, Tab 59

    58. Exhibit PX 1, Vol 1, Tab 61

    59. T163.50

    60. T164.10

67. On 21 May 2012, the load cell, on the South Flask, was replaced and new load cell fitted [61] . This was done in conjunction with the replacement of the South Flask [62] .

    61. Exhibit PX 1, Vol 1, Tab 61, p102

    62. Exhibit PX 1, Vol 1, Tab 63, p104

68. Also on 21 May 2012, recalibration was attempted of the new load cell [63] . The report in the Work Order of the work recorded some problems with the calibration.

    63. Exhibit PX 1, Vol 1, Tab 59, p100

69. The problems mentioned in that work order caused the defendant to contact Nobles. Mr Tavian spoke to Mr Wood on 21 or 22 May 2012. Then on 22 May 2012, Mr Tavian emailed Mr Wood with the name and contact details of Mr Trevor Read. Mr Wood then emailed Mr Tavian with a copy to Mr Read. The email discussed the problems with the calibration and it included the following [64] :

The way that you can get readings that are closer to what you require is the following:

You will have to recalibrate using the “CAL 1” and “CAL 2” functions again.

With the “CAL 1” being the flask empty, there for this value will have to be “0” (zero) tonnes.

Then put a known weight into the flask that is approximately 80% of the full load capacity, (it must be greater than 60% and up to 100% of the capacity).

64. Exhibit PX 1, Vol 1, Tab 68, p116

70. Mr Wood’s email of 22 May 2012 was forwarded by Mr Read to several people within the defendant’s organisation [65] . The suggestion from Nobles of the known weight being approximately 80% of the full load capacity of the flask led to a change in the proposal in the carrying out of the task. The use of two 3 tonne weights would not meet Mr Wood’s suggestion and so a greater weight was required. The job had changed as to how much weight was to be hung under the flask [66] . It was changed to three 3 tonne weights [67] .

    65. T169.28

    66. T480.28

    67. T481.07

The steps taken following the exchange of emails in May 2012

71. There was a meeting on 23 May 2012 between Messrs Ridley, Dally, Hannigan, Tavian and Gauci about hanging weights [68] . This was Mr Ridley’s first involvement with planning for the task [69] .

    68. T526.29-527.34; Exhibit PX 1, Vol 2, Tabs 77, 78

    69. T526.29

72. On or about 23 May 2012, Mr Gauci and Mr Tavian suggested to Mr Dally changing the load cells and the process to be undertaken, but were told the defendant wanted a known weight hung below the flask [70] .

    70. T481.14-.33

73. Messrs Ridley, Tavian and Gauci went underground on 23 May 2012 [71] . They were all experienced mine shaft workers coming up with ideas, looking to see how the task could be done safely [72] . They started at 25 level and went down from there taking the ladder ways. The visit was about 45 minutes to an hour. [73]

    71. T528.44, T384.47-385.27

    72. T591.40

    73. T592.28, T385.35

74. They looked at the access where the bases of the flasks were. There were steel gates blocking access into the area under the flasks. The top of the gates was about 1.5m above the ground. They looked at the opening above the gates. They believed they could do the task without opening the gates. In front of the gates was a steel bar which acted as a barricade. They were satisfied there was no risk of falling at 26 sub level [74] . They were satisfied the job could be done without working at heights [75] .

    74. T529.30, T592.11

    75. T386.48

75. They considered that there was room between the top of the gates and the bottom of the landing above [76] . This was important from the point of view of having sufficient space for the weights to be able to be put in place under the flask.

    76. T530.24-.50

76. They were happy with the attachment points on the flask. They were happy to work from the landing. They discussed how they would get the slings from the level below up to the flask. Rope was mentioned and a rigger would stand up on the landing. He would lower the rope and it would be attached to the sling and the slings would be pulled up and attached to the flask [77] .

    77. T591.04-.29

77. Mr Ridley stated that during the inspection on 23 May 2012, he did not consider what weights would be used or what plant would be used to convey the weights [78] . He said there was discussion of using chains or slings [79] . The matter was in its initial stages then and no plan had been developed [80] .

    78. T529.43-.49

    79. T529.41

    80. T530.45

78. Mr Tavian prepared a handwritten diagram on this May inspection [81] . It reveals the diameters of the lugs of the flasks [82] . The area was in the same condition it was on the January inspection [83] .

    81. T385.50; Exhibit PX 1, Vol 2, Tab 79, p205

    82. T343.40-.50; Exhibit 1, Vol 2, Tab 79

    83. T386.39

79. Around this time, Mr Gauci was asked to identify equipment that could be used to transfer the weights and weight basket down into the mine and that could be used in attaching the weights and weight basket to the bottom of the flask.

80. On 23 May 2012, Mr Gauci took photos of the weights and weight basket. The weight basket then had a metal bracket attached to it. That needed to be removed so that it would not be an obstruction in the carrying out of the task [84] .

    84. T221.18

81. On 25 May 2012, Mr Dally instructed Mr Ridley, to the effect that the weight basket needed to be suspended from the North Flask, and then separately suspended from the South Flask. Mr Dally indicated that the weights needed to weigh at least 80% of the capacity of each of the flasks. [85]

    85. Exhibit PX 3 [26]

82. On 25 May 2012, Mr Gauci, Mr Tavian and Mr Ridley went underground to the loading station at the 26 sub level. While at 26 sub level, “Mr Ridley and Mr Tavian took some measurements, including measurements of the opening at the bottom landing, the distance from the ground to the lifting lug of one of the flasks and the size of the lifting lugs. Mr Tavian and Mr Ridley then drew a sketch, wrote down the measurements of the area to ascertain whether the Weight Basket would fit in the area below each of the North Flask and South Flask.” [86]

    86. Exhibit PX 3 [25]

83. Mr Gauci said he remained on the 25 level talking to contractors while Mr Tavian and Mr Ridley proceeded to the 26 sub level. [87] Mr Gauci did not see Mr Tavian’s handwritten sketch with measurements [88] .

    87. T484.22-.33

    88. [80]

84. On or about 25 May 2012, Mr Ridley asked Mr Tavian to source appropriate certified lifting slings for the job. [89]

    89. T533.42-.49

85. On or about 25 May 2012, Mr Tavian, Mr Gauci and Mr Ridley discussed how the task would be performed [90] but did not write down any list of hazards or controls for the performance of the task. [91]

    90. T350.01-.12

    91. T350.21-.22

86. As at 25 May 2012, Mr Ridley had not seen any documents setting out the steps of the task. [92]

    92. T535.20-.22

87. “On 28 May 2012, Mr Tavian intended that the Weight Basket would fit in the bucket of a loader and the Weight Basket could or should have lifting chains attached and be slung on the ground by lifting chains. The lifting chains attached to the Weight Basket could be pulled up to the next level of the Mine and the Weight Basket could be suspended with workers working on the level above. Mr Tavian and Mr Gauci discussed this plan with Mr Dally.” [93]

    93. Exhibit PX 3 [28]

88. On 30 May 2012, Mr Tavian and Mr Harris had a meeting to discuss the status of the task of attaching the weights to the flask. [94] During the meeting, Mr Tavian informed Mr Harris he had taken measurements of the lugs; had organised Mr Woodroffe to set up the weights; that Mr Gauci had taken photographs of the weight basket, but the task remained uncompleted. [95]

    94. T410.32-.35

    95. T410.40-.43

89. At some stage, Mr Tavian told Mr Slade what he was putting together and Mr Slade thought that looked good [96] .

    96. T626.06

90. Mr Slade only had limited involvement in the task. He stated that on occasions Mr Tavian and Mr Ridley had reported to him on the progress of the plan. Mr Slade recalled that Mr Tavian was preparing a series of photographs planning out the steps of the job. [97]

    97. T625.39-.49, T626.01-.05

91. Mr Tavian showed Mr Slade some material or document he was preparing that would set out the steps to be involved in the task. [98] The document was to be shown to the workers and they would be talked through it. Mr Slade did not see any such document completed before he left the site in late May/early June 2012. [99]

    98. T625.46-626.40

    99. T626.14-.18

71. As part of his investigations to identify a loader that could be used, Mr Gauci identified two loaders. [100] These were a R1600G loader [101] and a R2900G loader. [102]

    100. T482.46-.49

    101. T483.47-.50

    102. T483.1-2; Exhibit PX 1, Vol 2, Tab 84, p0210

72. The R2900G loader had been modified to be fitted with forklift tynes. However, it only had 6 tonnes lifting capacity. [103]

    103. T362. 49-.50, T363.02-.07

73. The R1600G loader was eventually used for the task.

74. A meeting was held on 1 June 2012 with an external contractor, Nick Bobos, from Bobos, who was shown photographs and sketches of the proposed area of work and told about the proposed method of undertaking the task. Mr Bobos suggested that a plumb bob be hung down from the lifting lugs on the flask to the level below to see where the weights would hang. [104]

    104. Exhibit PX 3 [29]

75. On 1 June 2012, Mr Tavian asked Mr Harris to go underground, have a look at the task and run a plumb bob to make sure there was no steel work in the way when the slings were hung up [105] .

    105. T412.36

76. On 2 June 2012, Mr Harris went underground. He went to one of the lower landings on 25 level. This was probably to 26 sub level. He ran plumb bobs from the lifting lugs of the South Flask and took photos and measurements. [106] One line cleared the beam of the gate by 150mm and the other by 200mm. [107] The plumb lines were clear of obstructions. [108] The upper lugs were closer than the lower lugs to anybody working there. The photographs also showed the gate with the beam above it and another beam potentially in the way.

    106. T413.12

    107. T413.45; Exhibit PX 1, Vol 2, Tab 86, p0213

    108. T346.39

77. Mr Harris identified that one of the lifting lugs was unsuitable because the plumb line was impacting with one of the beams. [109] With the weighing task, the issue with this is if something touches the steel work then it will give a false reading. [110]

    109. T414.26, T415.43–.50

    110. T417.41 –.46

78. In early June 2012, Mr Harris provided Mr Tavian with the measurements he had made on 2 June 2012. [111]

    111. T418.09-.12

79. Mr Dally made arrangements to have the metal bracket on the weight basket removed. That was a few days before the incident.

80. When the basket was placed in the bucket, it was chained to the bucket. It overhung the front of the bucket to some extent. There were slings through the slippers [112] , being apertures under the basket to take tynes of a forklift.

    112. T222.48

81. The process envisaged by Mr Dally [113] and which he conveyed to Messrs Tavian, Harris, Ridley and Gauci [114] was that ropes would be tied to the lugs on the flask. The ropes would be lowered to the 26 sub level. There, riggers would lean over the gate, grab the ropes and attach them to chains. The chains would be attached to the weight basket. The riggers would go to the platform above the 26 sub level. They would signal the loader driver to bring the load under the flask. Using the ropes, they would lift the chains up. The chains would then be attached to the shackles attached to the lugs on the flask. If the chains needed to be shortened, the loader would reverse, the load would be lowered back to the ground, the loader isolated and the chains then shortened. This process would continue until the chains were the correct length. When the chains were attached to the lugs on the flask, the bucket would be lowered sufficiently for the weight basket to hang freely. The electricians would then do their task of checking the load cell for calibration purposes.

    113. T224.33-228

    114. T228.47-229.03, T387.43, T532.26

82. The evidence of this process did not extend to the retrieval of the weight basket into the bucket after the electricians had done their task, nor any step after that. Except to the extent that the JSA may be said to cover it, this process was not committed to writing.

83. The evidence does not make it clear when Mr Dally conveyed his concept of the process to Messrs Tavian, Harris, Ridley and Gauci. Mr Dally was not at the meeting of 5 June 2012 and does not appear to have had any significant role in the planning from that point. It is likely, therefore, that he conveyed his idea of the process to Messrs Tavian, Harris, Ridley and Gauci sometime shortly before 5 June 2012.

84. Following conveying that process to them, he spoke to them further. His evidence about that was as follows [115] :

    115. T229.17-.30

Q. But, nonetheless, you told the persons you've identified, that you wanted the work done from above, and you didn't want the workers working in the bucket.

A. Correct.

Q. Are you sure you said that?

A. Positive. 100% positive.

Q. And did you expect that that would be passed on?

A. Yes.

Q. And did you expect that would be recorded in any JSA or Safe Work method statement?

A. Yes.

The meeting of 5 June 2012

106. On 5 June 2012, Mr Harris organised the meeting that took place in Mr Harris’s office which was attended by Mr Harris, Mr Tavian, Mr Gauci, Mr Darren Woodroffe and Mr Pollard. At this meeting, the requirement to perform the task was discussed. [116]

     116. Exhibit PX 3 [30]

107. There are various estimates of the length of the meeting. They ranged from 20 minutes up to an hour. This evidence is so unreliable I cannot make any finding about how long it lasted except that it was somewhere between 20 minutes and one hour. The meeting was organised for 8.00am [117] . That is the time of day when things started to quieten down. At the meeting, the requirement to perform the task was discussed [118] .

     117. T389.22

     118. T353.22-.32

108. Prior to the meeting, Mr Pollard had not been down to the 26 sub level or the platform above it where the job was to be performed to examine how the task could be performed. He had not been involved in any discussion about the job. [119]

     119. T354.05-.19

109. Mr Harris wanted everybody who was involved in the project to be at the meeting to go through any risks and any showstoppers [120] . Everybody knew what the project was. Showstoppers comprised anything that might hold up the project including maintenance or safety issues [121] . Not everybody saw safety as a purpose of the meeting [122] .

     120. T419.05, 419.39

     121. T464.14-465.16

     122. T354.21-.41

110. Not everybody at the meeting recalled the materials that were present at it. I am satisfied, however, that the following were there:

1. the photographs, without the written script and markings on them, taken by Mr Gauci on 18 January 2012 [123] ;

2. the photographs taken by Mr Harris on 2 June 2012 [124] ;

3. Mr Tavian’s sketch [125] .

   123. Exhibit PX 1, Vol 1, Tab 12; T468.44

   124. Exhibit PX 1, Vol 2, Tab 86; T486.28

   125. Exhibit PX 1, Vol 2, Tab 79

111. As to Mr Tavian’s sketch, Mr Gauci said it was not present before agreeing in cross-examination that it might have been, but he did not see it [126] . His explanation that this part of the job had nothing to do with him is an unsatisfactory explanation for not seeing a document in circumstances where Mr Gauci was a planner and where the meeting was called by Mr Harris as he “wanted everyone to be there, and go through any risks, any show-stoppers” and he “wanted everyone face to face … so were knew exactly – everyone’s on the same page, that we’re going to do this task safely” and “That’s why I called the meeting so everyone knew what we were going to do, analyse the risk – what’s going on, work out the showstoppers” [127] and “No one left the room until we were all on the same page, that’s why we had the meeting face to face” [128] . For Mr Gauci not to have seen this document was a manifestation of the ideals of this meeting not being met in all respects. It is even stranger that he thought that document or that part of the process had nothing to do with him [129] .

     126. T521.25-.30

     127. T419.38-.39

     128. T422.16-.18

     129. T521.30

112. At the beginning of the meeting Mr Gauci explained the job:

I said what we planned on was to have a loaded weight in the bucket, have it all connected with your chains, Mark Pollard, at the time I didn’t know who was going to be on doing the job, but the two men doing the job would be on the platform above – lower down some tag lines, connect them to your chains, contact the loader driver, operate, raise the bucket, as they raise the bucket raise the chains up once it’s in position, high enough, connect the shackles onto the lifting points on the flask, once it’s all connected drop the bucket slightly to suspend the load and electricians calibrate the job, the load cell. [130]

130. T492.01-.08

113. It will be noted that this explanation of the process was not as extensive as that given by Mr Dally in evidence [131] .

     131. [102]

114. When confronted with questions about this meeting, Mr Pollard had no recollection of it at all [132] . He did have a recollection of some matters that were discussed with him and it is almost certain that some of that recollection was of matters that were discussed in that meeting.

     132. T1104.10-1115

115. Mr Pollard’s limited recollection includes the following.

• He had a meeting with Mr Harris and Mr Ridley the day before the incident. He may have had a meeting the day before the incident, but it could not have included both Mr Harris and Mr Ridley as they worked on separate panels and were not at work together that day.

• He had not seen Mr Tavian’s sketch [133] at any time before the incident [134] .

• The first he was aware he would be doing this job was the day before the incident when he was told at the meeting [135] . Overwhelming evidence establishes he knew about it at least from the meeting three days before the incident.

• At a meeting, he saw the photos with the plumb lines [136] . Almost certainly that occurred at the meeting of 5 June 2012. He said he was not told why he was being shown the photos [137] .

• At a meeting, he was told in a general sense what the job was, but no detail [138] .

• He has no recollection of any meeting before the incident at which Mr Gauci and Mr Tavian were present [139] .

  133. Exhibit PX 1, Vol 2, Tab 79

  134. T997.48

  135. T983.27

  136. T984.05

  137. T986.05

  138. T984.07-.27

  139. T989.18-.44

116. In light of this, and other evidence where Mr Pollard’s recollection is established to be faulty, I draw on the evidence of the others at the meeting of 5 June 2012 for my findings as to what was discussed.

117. In written submissions the defendant stated:

“At the meeting the following topics/issues were addressed:

a. to present all the information, get the weights together and get some actions happening [140]

b. That chains would be required to suspend the load from the flasks [141]

c. The configuration of the chains and the way chains would be hung [142]

d. That the longer legs of the chains would be attached to the lugs on the flask like Mr Pollard attached them [143]

e. That the chains would be adjusted on the ground [144]

f. Mr Pollard was asked for his advice on slinging the load and he identified the need to sling the load around the basket rather than using the lifting lugs otherwise it would be too long [145]

g. Mr Tavian was talking to his handwritten document and the plumb bob photos explaining [146]

h. They were going to drop the rope down, pull up the slings and connect it to the flask [147] ”

140. “Tavian XN T351 L19-27.”

141. “Tavian XN T352 L3- 33.”

142. “Tavian XN T352 L5 – 23”.

143. “Tavian XN T352 L35 – 38.”

144. “Tavian XN T352 L44-46.”

145. “Tavian XN T353 L22 – 35; T390 L30-37.”

146. “Tavian XXN T390 L10 – 25.”

147. “Harris XN T421 L38.”

118. The references supplied do not support that a. to e. were discussed at the meeting. They were matters Mr Tavian had considered before the meeting.

119. The evidence varies as to what was discussed at the meeting.

120. Mr Gauci’s evidence was as set out at [112]. He also added [148] ,

     148. T492.32-.49

Q. Now, in what you just said there's nothing about adjusting the chains, did you say anything about how it would be that the correct length of chain would be known, to permit the task to be completed in the way you’ve just described?

A. We had measurements on the photos, we took measurements, we designed the job, we explained to the rigger and supervisor how the job we thought could go ahead, and then it was up to them to fine tune it?

Q. Sorry‑‑

A. So if he's the rigger it's his job, that’s his department.

Q. By, "Up to them to fine tune it." You understood that if the chains needed to be adjusted then it was up to him to determine how it, how best to effect those adjustments?

A. Yes, he's got the experience.

Q. And what other fine tuning did you have in mind that he might need to employ, or did you know?

A. I didn't know.

121. The reference to “fine tuning” was not something Mr Gauci said to Mr Pollard, but something he expected he would understand from what was said to him [149] .

     149. T493.10-.29

122. There was elaboration of this in cross-examination [150] :

     150. T517.16-518.14

Q. But you do recall a conversation that you were involved in with Mr Pollard?

A. Yes.

Q. And in that conversation that - you discussed or you set out the work methodology‑‑

A. Yes.

Q. Is that right?

A. Yes.

Q. Is there any doubt in your mind about that?

A. No.

Q. And you said that, the loader would take the weight in the bucket, that it would be all chained and connected up. Is that right?

A. Yes, yes.

Q. Words to that effect.

A. Yes.

Q. And that was whilst, did you mention that, that would be whilst the loader bucket was on the ground at the sublevel 26?

A. Yes.

Q. And that the two men doing the job would then go up to the platform above.

A. Yes.

Q. Any doubt that you said words to that effect?

A. No, that's - that's what - that's what I said, all the work will be done from the level - from the platform above.

Q. And that you'd lower the rope down, sorry, that the - I'm sorry, did you mention when the rope would be lowered to - down to connect to the chains?

A. Yes.

Q. And what did you say about that topic?

A. Lower the ropes down before the buckets in - in - close to position.

Q. And so is that when it was on the ground in‑‑

A. When it was on the ground, yes.

Q. You then went on and you told us the methodology earlier. Do you recall what Mr Pollard responded to you?

A. Not exactly, no.

Q. Doing the best you can, can you tell us words, to the effect, of what you recall Mr Pollard saying to you when you were talking to him and telling him about this work methodology?

A. He agreed, he did not disagree.

123. In re-examination in relation to that last answer, Mr Gauci said he could not remember what Mr Pollard said, but he did not disagree. He cannot remember anything he said by way of agreement and all this was before the chains to be used had been identified [151] .

     151. T522.06-.22

124. Mr Tavian gave evidence that he discussed with Mr Pollard aspects of slinging the load [152] :

Q. Do you recall whether or not you actually discussed how you were going to sling the load, at the meeting?

A. I - I recall, like, asking Mark for his advice. He was our head rigger. He's the - the expert, so we were asking him for his input, his opinions.

Q. Do you recall what he said?

A. I recall that we couldn't use the - the lugs on top of the basket, because it would be too - it would make everything too - too long. I recall that we had to, like - I don't know the correct terminology, but hold - hold it, like, in a basket, and, like, cradle it, with like - like, a sling all the way around it, so - because we couldn't use the lugs.

152. T353.22-.32

125. Mr Harris gave the following evidence [153] :

Q. Do you have any recollection of what was discussed in that meeting as to the method they were going to use to hang the weights from the flask?

A. Yes, I had recollection of what they were doing.

Q. What is that recollection?

A. That they were going to drop the rope down, pull up the slings and connect it to the flask, Mr Gauci was talking to Mr Pollard about that.

…

A. I said to Mark, "Do you understand the system what we're doing?" And he goes, "yes", he was going to wrap the sling around the weight in his lingo, he was going to pull it back and everything's not a problem, I said, "So you understand what we're doing?" And he said, "Yes, I do." No one left the room until we were all on the same page, that’s why we had the meeting face to face.

153. T421.33-.39, T422.13-.18

126. I am satisfied that what was discussed at the meeting was the following:

• the weight would be in the bucket;

• the weight would be connected with chains;

• the men doing the job would be on the platform above the level;

• they would lower tag lines and connect them to the chains, pull the chains up and connect them to the flask;

• the loader driver would operate and raise the bucket;

• shackles would be connected to the lifting points on the flask;

• the bucket would be dropped slightly to suspend the load;

• electricians would calibrate the load cell.

127. What was left unsaid was:

• what would be suitable chains;

• how the chains would be adjusted for length if need be;

• how the weight basket would be retrieved back into the bucket after the electricians had calibrated the load cell. There was a complication here with the weight basket likely to pendulum out from the bucket when suspended;

• any fine tuning that might be required that the defendant was not aware of;

• where either or both of the workers would be on occasions when the loader was moving towards or away from the shaft.

128. Mr Pollard did not disagree with the work methodology [154] and he told Mr Harris he understood the system [155] .

     154. T518.14

     155. T422.14, T472.17

129. Not all the materials at the meeting were shared with everyone and not all topics were discussed with everyone. As noted earlier, Mr Gauci did not see Mr Tavian’s sketch. Mr Gauci was not told the relevance of the markings “150mm” and “200mm” on the photographs taken on 2 June 2012 [156] . He was not told what the plumb lines were connected to [157] .

     156. Exhibit PX 1, Vol 2, Tab 86; T486.42

     157. T486.46

130. Mr Gauci said that at the meeting, there were no measurements available of the height of the gate across the shaft on the 26 sub level [158] or the available space above the gate and beneath the first obstruction through which the load would have to pass. That was something that had to be worked out by the men at the job.

     158. T493.44-.46

131. There was no discussion at the meeting on 5 June 2012 about preparing a risk assessment [159] or a JSA [160] or any other safety or risk assessment document.

     159. T424.43

     160. T424.48

132. Mr Pollard was asked to commence the process of putting the equipment together with Mr Woodroffe [161] . He and Mr Woodroffe went from the meeting to do that [162] .

     161. T393.12

     162. T393.19

Events following the meeting of 5 June 2012

133. “After the meeting on 5 June 2012, Mr Pollard and Mr Woodroffe went to look at what chains were required for the Work. Mr Pollard subsequently told Mr Tavian that he was unable to locate the appropriate lifting chains. Mr Tavian then called Bradley Adams at Bobos and sought his assistance in obtaining the correct lifting chains suitable for the Task.” [163] Mr Tavian asked Mr Adams to come to the site and have a look [164] .

     163. Exhibit PX 3 [32]

     164. T351.46

134. “Whilst waiting for Mr Adams to attend the Mine, Mr Pollard located slings which were capable of lifting the load in the Weight Basket. He also had gathered some lifting chains to tether the Weight Basket to the bucket of the Loader.” [165]

     165. Exhibit PX 3 [33]

135. Mr Adams was to supply suitable rigging gear. Mr Adams went to the mine and spoke to Mr Pollard [166] and discussed the project. He spoke to Mr Pollard in the rigging shed [167] . He saw the basket with the weights in it [168] . Mr Pollard did not explain to Mr Adams how the task was planned to be undertaken [169] . There were no slings in the basket at that time. Mr Adams was told the basket was to be hung from the weigh flask. They spoke about the chains. Thirteen millimetre chains were suggested [170] . Mr Adams said 16mm was required for the weight and 16mm chains were ultimately supplied.

     166. T309.22

     167. T309.22

     168. T309.41

     169. T309.30-.32

     170. T310.05

133. A chain set [171] was set out in the well of the Court. Mr Adams thought there was no difference between that set and the set that was supplied. What was supplied was a set of 3m chains with two legs, bull ring, two shorteners and self-locking hooks [172] . They are the same as in the photograph at Exhibit PX 1, Vol 16, Tab 425, p3510.

     171. Exhibit PX 20

     172. T322.14

134. Mr Tavian was involved in arranging for weighing of the equipment [173] .

     173. T355.26

135. Mr Adams arranged for the weighing of the weight basket and associated slinging equipment [174] . The weights and the basket and also the chains were both weighed on 6 June 2012, the weights and weight basket in the morning and the slinging equipment in the afternoon. The weight basket weighed 9.8 tonnes and the chains 0.06 tonne [175] .

     174. T311.06

     175. Exhibit PX 1, Vol 2, Tab 96

136. The supervisors worked on a system of panels. On 6 June 2012, Mr Harris went off panel and Mr Ridley came back on. He started as normal about 5.45am. Mr Harris informed Mr Ridley about the meeting of 5 June [176] . Mr Harris did not advise Mr Ridley of the specifics of what was discussed at the meeting. [177]

     176. T536.42

     177. T536.49-.50-537.01

137. There were regular supervisors’ meetings each day about 6.10am [178] . There was one on 7 June 2012. Mr Ridley said Mr Olds was at it [179] . However, I accept Mr Olds’s evidence that he was not normally at these supervisors’ meetings as his field of work did not come under the agenda of these supervisors’ meetings. I accept he was not at the supervisors’ meeting on 7 June 2012. It was to put to Mr Olds that he attended the supervisors’ meeting at the beginning of each day and he denied it [180] . The only meetings he went to were meetings involving “our blokes”, a tool box meeting or a pre-start meeting [181] . He would go to scheduling meetings on Tuesdays concerning road repairs and the like [182] . “We were requested for man power” [183] . I accept, however, there was a discussion between Mr Ridley and Mr Olds after that meeting. It was a discussion about getting the loader to the back of the riggers’ shed to be loaded with the basket and weights [184] .

     178. T537.46

     179. T538.15

     180. T719.50-720.02

     181. T720.06

     182. T720.09-.11

     183. T720.19

     184. T538.22

138. There was an issue about the availability of the loader, but that was sorted out by Mr Dally [185] . That issue concerned the certification of the loader to go underground.

     185. T650.43-.46

139. There was then a shift crew meeting at 7.00am on 7 June 2012. There was discussion between Messrs Pollard and Ridley. There were further happenings during the day before Messrs Ridley, Pollard, Woodroffe and Olds all met at the riggers’ shed. The basket with weights was loaded into the loader [186] . By this time, the metal bracket had been removed from it. The weight basket was placed centrally in the bucket of the loader. It was placed in lengthwise [187] . Part of the basket protruded over the front of the bucket. The basket was secured to the bucket with a chain [188] . Mr Pollard put slings through the slippers and they were bunched on top of the basket [189] .

     186. T539.35-540.02

     187. Exhibit PX 3 [43], [44]

     188. T651.33; T996.04

     189. T663.22-.28, T998.10-.18

140. After the basket was loaded into the bucket, the bucket was raised off the ground about two feet and tilted [190] . This was to see that Mr Olds was comfortable with the loader bearing and carrying the weight. Mr Olds denies this [191] . Mr Ridley says there was a lift [192] and so does Mr Pollard [193] and I accept that evidence.

     190. T996.20-.50

     191. T727.30-.42

     192. T544.22

     193. T996.20-.50

141. The loader with weights was taken down to 25 level later that day on 7 June 2012. Mr Olds drove it underground [194] , reversing it down [195] .

     194. T544.36

     195. T651.47

142. After that, Mr Ridley then asked Mr Pollard if he was “right for tomorrow” and he responded “Yes”. Asked if he had everything he needed, he responded “Yes”. Mr Ridley told Mr Pollard he was going to swap the inexperienced Mr Kelly for the experienced Mr Rowbotham [196] .

     196. T544.44-.48

The day of the incident

146. 8 June 2012 was a winder maintenance day and everybody knew that [197] . It was the day planned for the task because everything was shut down for maintenance that day. Items in any proximity to the area where the work was to be done would not function. That included conveyors, weigh flasks and skips. The skips were at the top [198] . A purpose-designed platform was out under the skips and blocked off the haulage shaft.

     197. T892.12, T1123.07

     198. T606.44

147. On 8 June 2012, Mr Ridley commenced about 5.45am as usual. He spoke to Mr Gauci [199] . He asked him to get all the paperwork ready [200] . He attended a supervisors’ meeting around 6.10am. After the supervisors’ meeting, he had a discussion with Mr Olds and told Mr Olds that Mr Pollard would be in charge [201] . He also told Mr Olds to go to 26 sub level and meet Mr Pollard there. Mr Ridley told him that Mr Pollard knew what was going on [202] . Mr Ridley told Mr Olds he would be down later. Mr Olds does not remember the meeting with Mr Ridley but I accept it occurred.

     199. T545.45

     200. T546.02

     201. T546.30

     202. T652.29

148. Mr Ridley then conducted the shift start-up meeting at 7.00am. He had a discussion with Mr Rowbotham [203] . He told him he would be assisting Mr Pollard and told him he would need to read and sign the JSA and do a 3TC. He also had a discussion with Mr Pollard [204] . Mr Rowbotham said he was at the start-up meeting on 8 June 2012 when Mr Ridley told Mr Pollard that he would be hanging weight from the bottom of the flask [205] .

     203. T546.45

     204. T547.07

     205. T855.40

149. Mr Pollard was aware that Mr Ridley told Mr Rowbotham he would be working with Mr Pollard. He was also aware that Mr Ridley had told Mr Vartuli and Mr Williams that they were to help Mr Pollard if need be [206] . Mr Vartuli and Mr Williams would be working on 25 level. Mr Pollard was told to take his time [207] . Mr Ridley told him he would be attending the site after attending a job at 21 level [208] . He told him he would be on his way after visiting 21 level. He told him to grab all the gear he needed, do a JSA and return to Mr Ridley’s office with it.

     206. T1123.50-1124.15

     207. T1150.13

     208. T1150.21

150. At the time he prepared the JSA, Mr Pollard had not thought about how he was going to sling the weight basket under the flask. [209] He envisaged that a cord would be used to pull the shackles and chains up from the 26 sub level to the bottom of the flask. He had Mr Rowbotham in mind to undertake that part of the task [210] . When he was writing out the JSA he did not have any thought as to whether he would be working from the bucket of a loader. [211]

     209. T1001.01-.03

     210. T1003.01-.42

     211. T1204. 30-.32

151. About 7.50am, Mr Pollard attended Mr Ridley’s office with the JSA completed by him. It was as follows [212] :

JSA text version (57.7 KB, rtf) |   JSA text version (191 KB, pdf)

212. T547.38; Exhibit PX 1, Vol 1, Tab 1

152. Mr Ridley signed the JSA [213] . Mr Ridley looked at the JSA and gave it back to Mr Pollard. Mr Ridley considered the JSA was adequate. [214] There was no further discussion between Mr Pollard and Mr Ridley about the contents of the JSA. [215]

     213. Exhibit PX 3 [51]

     214. T548.19-.20

     215. T548.34-.36, T1001.31-.38, T1001.49-.50

153. There was, however, further discussion about the job.

154. In the further discussion about the job, Mr Ridley’s evidence was at times inconsistent and unreliable. At one point he said [216] ,

Q. In terms of the brief touching of the job, what did you say?

A. We just spoke, I just said, "Look, grab all your gear," I said, "The loaders down there," I elaborated that you just got to pull the chains up on the landing, you stand on the bottom landing, pull the chains up, attach the chains and you could have a direct vision with the loader driver from that landing. And I said, "All you got to do is lower that 6 inches and then we can calibrate the weight of it."

216. T548.42-.48

155. Later he agreed it was possible that he did not give Mr Pollard any specific instructions as to where he was to perform the task of attaching the chains [217] . Then he said he had not envisaged there would be a need to shorten the chains [218] and he followed that by saying he envisaged that would be done on the floor level [219] .

     217. T577.50-578.02

     218. T578.07

     219. T578.10

156. Mr Ridley agreed he did not tell Mr Rowbotham he was only to work up on the landing [220] . He could not remember telling Mr Olds [221] .

     220. T576.42

     221. T577.01

157. I am satisfied that Mr Pollard was not told specifically not to work from the bucket of the loader, nor was he told specifically to work only from 26 sub level or the platform above. The same applies to Mr Rowbotham and Mr Olds. [222]

     222. T576.42, T576.48-577.01

158. Mr Ridley instructed Mr Pollard [223] to complete a “Take Time Take Charge” [224] (3TC), which was a risk assessment document [225] .

     223. T548.28-.29

     224. Exhibit PX 1, Vol 1, Tab 2

     225. Exhibit PX 3 [52]

159. “Mr Pollard travelled to the 26 sub level where he met with Mr Rowbotham and Mr Olds. Mr Pollard discussed the Work and asked them to sign the JSA. Mr Olds raised concerns about Mr Pollard’s intention to use the bucket of the Loader as an elevated work platform. Mr Pollard told Mr Olds that he would be using height safety equipment attached to the bucket of the Loader during the Work and that the procedure had been discussed with his supervisors.” [226]

Although this is an agreed fact, it is of little utility. Because of its generality it is capable of conveying false impressions. An example is the first sentence. Mr Pollard certainly travelled to the 26 sub level and met with Mr Rowbotham and Mr Olds. The impression may be conveyed that he met them both when he arrived there. He did not. He met first with Mr Olds and had some time and discussion with him before Mr Rowbotham appeared coming from the 25 level. Likewise, the second sentence. An impression that Mr Pollard discussed the work “and asked them to sign the JSA” simultaneously would be far from correct. The discussions were separate. An impression that they signed the JSA almost simultaneously would be wrong. They did not. The agreed fact does not even note the signing of the JSA by Mr Olds or Mr Rowbotham. More significantly, the agreed fact is capable of giving the impression that Mr Olds’s concerns and Mr Pollard telling Mr Olds about the discussion with the supervisors occurred before the signing of the JSA by Mr Olds. I am satisfied those matters did not occur until shortly before the lift to move the weights into the shaft.

226. Exhibit PX 3 [55]

160. I reject any suggestion that in telling Mr Olds that he had discussed the project with his supervisors Mr Pollard lied to Mr Olds by telling him that he had discussed with his supervisors working from the bucket and that the supervisors had approved of that.

161. Mr Pollard and Mr Olds waited for Mr Rowbotham [227] . Mr Pollard said Mr Rowbotham arrived at the job site by walking down the decline [228] . I think he is wrong about that. I am satisfied Mr Rowbotham used the ladder way that was nearby. He had come down from the 25 level.

     227. T1005.18

     228. T1010.07

162. What happened is that Mr Pollard travelled down in the cage to 25 level with Mr Rowbotham [229] . I accept his evidence about that. He had told Mr Rowbotham to bring his fall arrest equipment with him. Mr Pollard had his gear in a wheelbarrow [230] . At the 25 level, he put his gear into a bucket of a Kubota [231] and moved that to the 26 sub level. There, he put his gear on top of the weight basket [232] .

     229. T1002.27

     230. T1002.50

     231. T1004.08

     232. T1004.25

163. Meanwhile, Mr Olds had gone down to 25 level. He moved his loader to a point at the 26 sub level where he was confronted by an “Authorised Persons Only” (APO) sign. He waited for Mr Pollard to arrive and remove the sign. When Mr Pollard arrived, he obtained authorisation to remove the sign and removed it. Mr Pollard obtained that authorisation at 8.34am. When it was removed, Mr Olds then moved the loader onto the 26 sub level.

164. After he moved and parked the vehicle on the level, Mr Pollard produced the JSA. Mr Olds quickly looked at it, did not see anything that alerted him to anything and signed it [233] .

     233. T654.22.-.28

165. Mr Olds did not know what the job process was going to be [234] . Mr Pollard explained the job process to Mr Olds [235] . Mr Pollard told Mr Olds the loader had to be placed under the shaft lifting the weights up under the flask [236] . He did not say anything to Mr Olds about getting into the bucket to do the work until shortly before the lift [237] .

     234. T652.21

     235. T655.16-.38, T1006

     236. T655.16-.24

     237. T665.34

166. Mr Pollard recalled telling Mr Olds that they were going to take the weight basket with the weights in the loader bucket out underneath the flask and hang it underneath the flask. They were then going to get him to lower the bucket by about 6 inches, then have a look at the weight monitor on the flask to see if it was reading correctly, and then do the same on the other side. He also told Mr Olds that they were going to use chains on the bottom of the flask and sling it up to the weight basket and then get him to lower the loader bucket. [238]

     238. T1006.14-.24

167. Mr Olds thought that Mr Pollard must have been permitted by his supervisors to get in the bucket [239] . What Mr Pollard told Mr Olds about that is not clear from Mr Olds’s evidence. The evidence varies. He said:

     239. T744.25-745.25

• that he and Mr Pollard did not discuss what the supervisors said [240] ;

• he could not remember if Mr Pollard said he had permission to be in the bucket [241] ;

• he would be guessing [242] ;

• he had discussed the work methodology, including getting in the bucket, with his supervisors [243] .

When his memory was refreshed from an earlier statement, he said Mr Pollard had told him that his supervisors had given “permission” [244] . In re-examination, he said that was not permission to get in the bucket, but permission to proceed in accordance with the JSA [245] . He said Mr Pollard did not tell him he had permission from his supervisors to get in the bucket [246] .

240. T745.06, T747.27

241. T745.16 T747.32

242. T747.44

243. T748.23-.37

244. T750.28-.32

245. T800.20-.37

246. T798.35

168. I am satisfied Mr Pollard had not discussed with his supervisors getting in the bucket, he did not have permission from them to do that and I do not accept that he told Mr Olds that he did.

169. A lot of detailed evidence as to what happened at the level is not important. What is important is that Mr Pollard had Mr Olds and Mr Rowbotham sign the JSA. They did so, neither of them reading it in any detail. Mr Pollard’s evidence was that he only decided to work from the bucket when he got to the 26 sub level [247] . He told Department [248] inspectors he intended to work from the bucket from when he became aware of the job, possibly the day before. He said he was incorrect in what he told the inspectors and that he should have said “No” in answer to their question [249] . I accept his evidence about that. The JSA prepared by him is consistent with the fact that he did not have in contemplation working in the shaft from the bucket of the loader when he prepared it [250] . So are his explanations, as I find them, of the task to Mr Olds and Mr Rowbotham.

     247. T1097.36

     248. NSW Government Trade & Investment, Mine Safety

     249. T1097.47-1098.04

     250. T1000.47-1001.03

170. When Mr Rowbotham arrived, Mr Pollard explained the job process to him [251] . Mr Rowbotham says he was told to climb to the level above the loader and lower the rope [252] to which Mr Pollard could attach the shackles. He would then pull the rope up with the shackles. He was to put the shackles onto the flask’s lugs and lower the rope again. Mr Pollard would hook one of the chains to the rope for him to pull the chain up. Then he was to hook the chain to the shackle and do the same thing again with the other side of the chain. [253]

     251. T810.25

     252. T810.50-811.02

     253. T811.05-.23

171. Whether he told Mr Rowbotham then about working from the bucket is the subject of conflicting evidence from Mr Pollard. At one point he said he told Mr Olds that they would both be in the bucket and he told him that before Mr Rowbotham arrived [254] . He also said he told Mr Rowbotham this before his signed the JSA [255] . At a later point he agreed he had not told Mr Rowbotham that before he signed the JSA [256] . Mr Rowbotham does not say that he was informed he would be in the bucket before he signed the JSA.

     254. T1006.38-1007.14

     255. T1007.30-.48

     256. T1154.22-.28

172. Mr Rowbotham said Mr Pollard told him about the job after he signed the JSA [257] . There was no mention in that evidence about where the job would be done from. In cross-examination, he said there was no mention in that conversation of working from the bucket of the loader [258] .

     257. T813.40

     258. T901.11-.13

173. I accept that Mr Rowbotham was not told about working from the bucket of the loader at the time of his signing the JSA.

174. When Mr Rowbotham arrived, the JSA was already signed by the others. Mr Rowbotham did not take much notice of it. Mr Pollard told him to sign it and he did [259] . He had faith in Mr Pollard [260] .

     259. T812.45-814.20, T1007.29-1008.01

     260. T894.45

175. At the time he read the JSA Mr Rowbotham had never done any similar work to the work involved in attaching weights to the bottom of the flasks. Nor had he done any work on the flasks or in the vicinity of where the lugs were on the flasks. [261]

     261. T832.04-.13

176. “At the 26 sub level, Mr Pollard and Mr Olds decided that a trial lift was to be conducted to check that the loader could lift the bucket containing the weight basket over the gate. The chains tethering the weight basket into the bucket of the loader to prevent slippage of the weight basket were removed”. [262] Although this is an agreed fact, it can be misleading. The fact is the tethering chains were removed. The agreed fact is capable of conveying the impression that they were removed before the trial lift. They were removed after. [263]

     262. Exhibit PX 3 [56]

     263. T661.37, T1025.47, T1156.20

177. “No person was present in the bucket of the loader during the trial lift. The weight basket was lifted into the shaft below the North Flask and then the loader reversed and the bucket was lowered back to the ground without incident or Mr Olds identifying any issue with the operation of the loader”. [264]

     264. Exhibit PX 3 [57]

178. Mr Pollard completed a 3TC for the work [265] . He did so before Mr Rowbotham joined him at the 26 sub level [266] . A copy of it is incorporated here:

3TC text version (91.2 KB, rtf) |   3TC text version (205 KB, pdf)

265. Exhibit PX 1, Vol 1, Tab 2

266. T1028.29

179. The 3TC records a time of 8.00am. Mr Pollard said he completed it when on 26 sub level, after the loader was already there [267] . That was after 8.34am as it was 8.34am when he rang from the level to get the authorisation for the removal of the APO sign. He also said he did not necessarily put an accurate time on his 3TCs when he completed them, but only an approximate time. Even on that explanation I think 8.00am is too far removed from the time the loader was on the 26 sub level for him to have written 8.00am as the time he completed his 3TC, unless he wrote 8.00am by mistake. 9.00am or close thereto is the likely time he completed it.

     267. T1163.13

180. There is conflict in the evidence as to the precise sequence of events following the commencement of the job process. This conflict does not bear on a resolution of the issues.

181. In the movements of the loader, Mr Olds was taking directions from Mr Pollard. When he was ready, Mr Pollard gave Mr Olds a signal to move forward. He did so, stopping about two to three feet short of the fence. Mr Pollard then got in the bucket.

458. I am satisfied beyond reasonable doubt that breach and exposure to risk have been established in relation to these particulars.

Particular 15(b)

467. The allegation pleaded is that:

The defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to …

(b)   assess the adequacy of the implementation of the Control Measures.

468. The Control Measures refer back to the particulars in particular 12.

469. I have made findings that exclude a number of the Control Measures in this case.

470. This particular must be confined to the matters in particulars 12(e), (f) and (g), that is, the PPE, Fall Arrest Systems and Work Platforms.

471. As to the PPE and Fall Arrest Systems, I have dealt with these subject matters in dealing with particulars 12(e) and 12(g) and 13 (f) and 13(g).

472. It is sufficient to note that it was a lack of adequate supervision that allowed:

• Mr Pollard and Mr Rowbotham to be using the wrong fall arrest equipment;

• Mr Pollard and Mr Rowbotham to use fall arrest equipment that should not have been in service;

• a system of external inspection of PPE in which not all PPE was examined as it was kept by workers in their lockers.

473. The case for inadequate supervision in this regard is made out. This breach allowed each of the matters specified in the previous paragraph. Had adequate supervision been provided, it would have prevented that and so minimised the risk to Mr Pollard and Mr Rowbotham. The provision of adequate supervision would not have been a costly or inconvenient undertaking.

474. As to the Work Platforms, I have dealt with that subject matter in dealing with particular 12(f) and 13(d).

475. It is difficult to know what to make of this particular. It asserts the defendant failed to adequately supervise. What it failed to adequately supervise is said to be the implementation of a Control Measure. When one goes back to particular 12(f), the Control Measure is a documented policy. The allegation, therefore, is that the defendant did not adequately supervise the development, implementation and enforcement of a documented policy. The documented policy the prosecutor has in mind is a policy prohibiting the use of a bucket of a loader as a work platform. But that document did not exist, so there was nothing to supervise. If the allegation is that such a document should have existed, that adds nothing to what is covered by particulars 12(f) and 13(d). This aspect of the particular is not made out.

476. I am satisfied beyond reasonable doubt that breach and exposure to risk have been established in relation to this particular.

Particular 15(c)

477. The allegation pleaded is that:

The defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to …

(c)   ensure that the proposed method of conducting the Work was assessed and approved by a supervisor or other suitably qualified person prior to the Work commencing, as being adequate to address the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work.

478. This is a somewhat awkwardly worded particular. I take it to mean that the proposed method of conducting the work should have been assessed and approved by a supervisor or other appropriate person before work commenced.

479. Whether the proposed method of conducting the work be the unwritten process discussed at the meeting of 5 June 2012 or the JSA, it does not matter.

480. The unwritten process discussed at the meeting of 5 June 2012 was an incomplete process. The almost complete process was that put to Mr Cockbain in cross-examination and set out in [436]. Not even that was assessed and approved by a supervisor or other appropriate person.

481. The supervisor for the task was absent from the meeting of 5 June 2012 being the meeting that, more comprehensively than any other, dealt with and discussed the task. The supervisor for the task, not being at that meeting, could not know first-hand precisely what was discussed, let alone what Mr Pollard was told. The proposed method of conducting the work was not assessed by Mr Ridley at least to the full extent of all steps that might be required in the process. It is no answer to pass on to “the subject matter expert” responsibility for steps that had not been spelt out in the process. He was the one who was owed the safety duty. The matter could have been dealt with most simply if everybody involved had been at the site before the job started and before the JSA was prepared and the JSA prepared there. In that event, the proposed method would have covered all the steps necessary to do the work and, accordingly, would have been properly assessed and appropriately approved by the supervisor. The failure to do this constitutes breach by the defendant of its duty.

482. If the proposed method of conducting the work was the JSA then, for reasons already given, that was an inadequate document as a result of a deficient process. To the extent that was assessed and approved by the supervisor, it was an assessment and approval of something that could not qualify as a proposed method of conducting the task.

483. Assessment and approval of a proper proposed method of conducting the work would have been at negligible cost and inconvenience and would have minimised the risk of injury.

484. This breach allowed the work to proceed without proper safety measures in place. Accordingly, it exposed Mr Pollard and Mr Rowbotham to risk of death or serious injury.

485. I am satisfied beyond reasonable doubt that breach and exposure to risk have been established in relation to this particular.

Particular 15(e)

486. The allegation pleaded is that:

The defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to …

(e)   ensure that a suitably qualified and competent person was present when the Work commenced and while the Work was being performed to ensure that the Control Measures were in place and were being implemented to eliminate or otherwise minimise the Risks to the Workers to the extent reasonably practicable.

487. For reasons given earlier, the Control Measures under consideration are those concerning the PPE, the Fall Arrest Systems and the Work Platforms. These do not come into consideration unless the bucket of the loader was to be used as a work platform. Accordingly, the thrust of this particular is that there ought to have been supervision on the job to ensure that the bucket was not used as a work platform.

488. This was a new task that had not previously been undertaken. Mr Pollard had only limited involvement in the task planning. Mr Rowbotham and Mr Olds had no involvement in the task planning. The task planning was not comprehensive in that it did not cover all steps. For reasons given, the JSA was inadequate. It was necessary in these circumstances for supervision to be provided at least when the work commenced. This view is fortified by Mr Pollard being sent to work with a JSA with deficiencies that should have been patently obvious to Mr Ridley. It was inappropriate to leave Mr Pollard and Mr Rowbotham to their own devices with an instruction to start the job without the supervisor.

489. The supervision could have been provided with little or no cost or inconvenience. The absence of supervision at the commencement of the task means that the prosecution has made out a case for breach in relation to this particular.

490. The presence of a qualified and competent person when the work commenced would have eliminated this risk.

491. I am satisfied beyond reasonable doubt that the elements of breach and exposure to risk have been established in relation to this particular.

Two further points

492. There are two further points I need to consider.

493. The first is a submission by the defendant that it is charged with an offence on a particular day, being 8 June 2012, and it cannot be found guilty in respect of an offence allegedly committed on any other day. That is correct, but it is of no concern in this case. The prosecutor does not seek any finding of guilt in respect of any other day and I have not made any finding of guilt in respect of any other day. If any of the breaches I have found occurred before 8 June 2012, they also occurred on 8 June 2012.

494. The second point is that the defendant has raised a defence of honest and reasonable mistake of fact. The submission was detailed. I trust I do the defendant no disservice by abbreviating it. For convenience, I shall continue to call this a defence, though it is doubtful that is what it is as it is a matter in respect of which the prosecutor bears the onus.

495. The submission was that offences under the Act are offences of strict liability – s12A. Defences of strict liability are capable of attracting the defence of honest and reasonable mistake of fact. The onus is on the prosecutor – Proudman v Dayman [555] ; He Kaw Teh v The Queen [556] .

     555. (1941) 67 CLR 536, 540-1

     556. (1985) 157 CLR 523, 528, 529-530, 531-2, 533, 534-5, 562-3, 592-3

496. Statements in the authorities indicate that the defence may not be available in cases concerning safety and industrial matters – Proudman at 540. Cases under the precursor legislation to the Act denied the availability of the defence. This was because the offences were offences of absolute liability - WorkCover Authority of NSW (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [557] .

     557. [2008] NSWIRComm 153 [237], [253]-[255]

497. It is necessary to have regard to the words of the statute [558] , to the subject matter of the statute [559] , and whether putting a defendant under strict liability will result in enforcement [560] .

     558. He Kaw Teh at 529

     559. He Kaw Teh at 529

     560. He Kaw Teh at 530

498. It is sufficient to note s 244(3) of the Act. That expressly refers to “mistake of fact”. It expressly refers to circumstances where it may be relevant to determining liability. The conclusion is inevitable that honest and reasonable mistake of fact is available to a defendant in a prosecution under the Act.

499. It does not follow that it is available in prosecutions for all offences. The opening words of the subsection make plain that it is not – “If for an offence against this Act mistake of fact is relevant to determining liability …” This plainly suggests that there will be offences for which mistake of fact is relevant and offences for which it is not.

500. For the defence to apply, it must be for an offence where mistake of fact is relevant to determining liability. The prosecutor identified a number of sections where that could be so [561] . They were said to be sections which did not contain a duty to ensure. Some of the sections specified did contain that duty. Others did not. It is, however, sufficient to take one example. Section 41 relevantly provides:

A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if:

(a)   the regulations require the workplace or workplaces in that class of workplace to be authorised, and

(b)   the workplace is not authorised in accordance with the regulations.

561. T2213.34-.35

501. If a workplace was authorised pursuant to that section then became unauthorised without reference to the person conducting the business, one can see that honest and reasonable mistake of fact would be relevant in determining liability.

502. I do not think the defence is available to the defendant in this case. I do not think this is a case where mistake of fact is relevant to determining liability.

503. Further, the defendant’s belief was not a belief as to an existing state of facts. It was a belief that certain facts would occur or not occur. There were two. They were that:

1. no one “would” use the bucket of the loader for the work platform to work at heights [562] ; and

2. in order to perform the task of suspending the weights underneath the flask nobody was “required” to work at heights [563] .

   562. T2095.02-.03

   563. T2095.04-.06

504. Further, s 19 required the defendant to ensure so far as is reasonably practicable the health and safety of Messrs Pollard and Rowbotham. The facts as to which the defendant claims the requisite belief are set out in the previous paragraph. Subject to reasonable practicability, the defendant was required to ensure those facts. It could not satisfy that obligation by having an honest and reasonable belief that the facts would happen. The obligation was to ensure, so far as reasonably practicable, that the facts happened, not to believe they would.

505. Further, even if the defence is available, there must be a fact or facts which the defendant honestly and reasonably believed to be true. That fact or those facts, if true, must be facts that would exculpate the defendant – Proudman at 540, He Kaw Teh at 534, 573.

506. Even if there was an honest and reasonable belief in these facts, that would not exculpate the defendant. The defendant might have believed that nobody “would” use the bucket as a work platform and might have believed that nobody was “required” to work at heights, but they are not exculpating facts.

507. The duty was in so far as reasonably practicable to ensure. Accordingly, it was to make sure that no one could use the bucket. Nobody asserted they had a belief that Messrs Pollard and Rowbotham could not use the bucket. Likewise, with working at heights. The defendant may have had a belief that Messrs Pollard and Rowbotham were not required to work at height, but nobody asserted a belief that they could not. The issue is not whether they were required to work at heights, but whether they could have.

508. Further, I am satisfied there was no honest and reasonable mistake of fact on the part of the defendant. The first question here is who, on behalf of the defendant, had the belief. It is difficult to see how the defendant could have the requisite belief unless everybody in the planning did so. If anyone of the planners had the belief that the workers could use the bucket as a work platform or could work at heights, the defendant could not be said to hold the requisite belief.

509. It is the reasonableness of the belief that is at issue here. The belief is not reasonable where the defendant’s risk assessment process was flawed. It was flawed because the JSA process did not follow the defendant’s mandatory and sensible policy and guidelines. It did not address all risks and controls. It did not include all team members. To the extent it included Mr Pollard, it did not cover everything. The JSA was not done at the work site or in a team setting. It was set up for the flaws and cracks in the system that it had. It was not reasonable in those circumstances for the defendant to hold a belief that the workers could or would not undertake the work by using the bucket as a work platform or working at height.

510. Further, the requisite belief is not reasonable in light of Mr Dally’s unchallenged evidence. He told Messrs Tavian, Harris, Ridley and Gauci that he wanted the work done from above – that he did not want the workers working in the bucket. Thus, one of the defendant’s planners was alert to the possibility it could happen. He put the other planners, and supervisors, on notice. Thus, five of the defendant’s planning and supervising personnel were alert to the possibility of the workers not working “from above” and the possibility of working from the bucket. Mr Dally’s message was not passed on to the workers. Mr Dally expected it would be. It was a reasonable expectation. After all, there was no point of telling the other planners and supervisors this if it was not to be passed on. In these circumstances, the belief held by the defendant is not reasonable.

The four alternate measures

511. I return to the four alternate measures to undertake the task that the prosecutor says the defendant could have undertaken.

512. They were:

1. Removing the un-calibrated load cell and fitting a pre-calibrated load cell (First alternate measure),

2. Removing the un-calibrated load cell and returning it to the Load Cell supplier for it to undertake the recalibration of the Load Cells (Second Alternate Measure),

3. Adding a known weight (mass) of ore into the Flask via a calibrated conveyor weightometer and comparing the readings from the Load Cells to the known weight of ore in the Flask and electronically adjusting the Load Cells (Third Alternate Measure), and

4. An in situ calibration of the Load Cell using a ‘test rig load cell’ and ‘pull down rig’ and comparing the readings from the strain gauge processor of the test rig load cell to the display on the RM4 unit of the Load Cell, and electronically adjusting the RM4 unit of the Load Cell (Fourth Alternate Measure).

513. Early in submissions I raised whether I needed to consider the four alternate measures. Apart from an observation by the prosecutor the matter was not pursued at any length.

514. After giving the matter further reflection, I have come to the view that I ought not embark on the four alternate measures. There are several reasons for this.

515. First, I have found the defendant guilty. To embark on a consideration of the four alternate measures would simply be an academic exercise.

516. Secondly, the method chosen by the defendant to calibrate the load cell was to hang a known weight from the bottom of the weigh flask. On the evidence this was one of six recognised methods. There were the four alternate methods the prosecutor relies on in this case. There was also the method of placing a known weight in the weigh flask. On the evidence that would have been impractical in this case. The method chosen was an acceptable method [564] .

     564. T624.25-.34; Exhibit PX 1, Vol 9, Tab 239, p1527 [199]

517. Thirdly, the principal thrust of the prosecution and the defence of it centred on the system the defendant adopted for calibrating the load cell. The matter should be examined from the position that the method was an appropriate one to choose and determining whether it was carried out by the defendant in conformity with its health and safety duty.

518. Fourthly, the method adopted was capable of being prepared and carried out without risk to workers. It was the defendant’s duty to do that so far as reasonably practicable. The fact that it did not do that does not mean that it should not have used that method. The matter stands to be tested on whether or not the defendant complied with or breached its health and safety duty in carrying out the method it chose.

519. Fifthly, I may be wrong in my findings of breach by the defendant. I take an example put forward by the prosecution, which is a possibility, being that a finding of guilt in relation to the lack of a proper risk assessment might be found to be in error [565] , though the observation could apply in relation to any finding. There are three possibilities. The first is that my findings are upheld. In this situation, there is a finding of guilt and no need to consider any of the four alternate measures. The second is that the finding is such that the finding should not have been made and the defendant should have been exonerated. Assuming this applies to all findings of guilt, then the result must be that the defendant be found not guilty and it would be futile to pursue an examination of the alternate methods. If the defendant adopted an acceptable process and did so without breaching its health and safety duty in implementing it, it should not then be exposed to risk of being found guilty in failing to adopt some alternate process which itself might or might not carry greater risks that than the one it employed. The third possibility is that a finding is erroneous because of taking something into account that should not have been, or overlooking something that should have been taken into account, or for some other reason, and the appeal court is unable to determine what the proper finding should be. A consideration of the four alternate methods may allow the appeal court to make a final and dispositive order. The problem with that is that the defendant could fairly claim to be entitled to have the disputed finding properly determined. It should not be found guilty on the basis of available alternative methods when there could be a finding in its favour exonerating it from guilt on the system it did use.

     565. T2038.40

CONCLUSION

520. The elements of the offence have been proved beyond reasonable doubt against Perilya Broken Hill Limited in respect of particulars 12 (e), (f), (g); 13 (d), (f), (g); 14 (b); and 15 (a), (b), (c), (d), (e) of the Second Amended Summons.

521. I find Perilya Broken Hill Limited guilty of the offence.

522. I will list the matter for sentence on a date convenient to the parties.

**********

Endnotes

Amendments

05 December 2018 - paragraph order corrected and images added

Decision last updated: 05 December 2018