Linnane (Department of Planning and Environment) v Peak Gold Mines Pty Ltd

[2021] NSWDC 565

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Linnane (Department of Planning and Environment) v Peak Gold Mines Pty Ltd [2021] NSWDC 565

Hearing dates:

6 October 2021

Date of orders:

21 October 2021

Decision date:

21 October 2021

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Peak Gold Mines Pty Ltd is convicted.

2 I impose a fine of $480,000.

3 The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors –penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Work Health and Safety Act 2011

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

Work Health and Safety (Mines and Petroleum Sites) Regulation 2014

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

R v AB [2011] NSWCCA 229

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

Department of Planning and Environment (Prosecutor)
Peak Gold Mines Pty Ltd (Defendant)

Representation:

Counsel: I Taylor SC with N Evans (Prosecutor)
B Hodgkinson SC with S Meehan (Defendant)

Solicitors: Maddocks (Prosecutor)
Corrs Chambers Westgarth (Defendant)

File Number(s):

2019/101847

Publication restriction:

None

Judgment

Introduction

1. Peak Gold Mines Pty Ltd (the offender) appears for sentence after it pleaded guilty to an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Mark Brilley to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of $1.5 million.

Facts

3. The parties tendered an Agreed Statement of Facts, which I will summarise below. A few weeks prior to the sentence hearing, the offender also agreed that Mr Brilley’s death on 3 April 2017 was caused by the underground working conditions in the Mine on that day (the causation issue).

The Peak Gold Mine

4. The offender was the appointed mine operator of the Peak Gold Mine located at Hillston Road, Cobar, New South Wales (the Mine). The Mine was a “mine” within the meaning of s 6 Work Health and Safety (Mines and Petroleum Sites) Act 2013 (the WHSMP Act) and a “workplace” within the meaning of s 8 of the Act.

5. The Mine comprised of underground gold and copper deposits, known as the Perseverance, Peak and New Occidental ore bodies. The part of the Mine where the Perseverance ore body is mined (the Workings) contains both gold and copper ore and is mined using the method of bench stoping. The Mine operated at depths from the surface to approximately 1500 metres below the ground.

Safety management system at the Mine

6. The offender had a safety management system in place at the Mine on and before 3 April 2017. The safety management system consisted of the offender’s health and safety policy, procedures, management plans and control plans, including the Ventilation Control Plan PLN-01-085 and Underground Mine Ventilation Manual MNL-01-081.1.

Ventilation at the Mine

7. Ventilation at the Mine consisted of fresh air drawn from the surface into the underground mine by one or more primary ventilation fans. The flow of air through the Mine circulated through various pathways and then left the Mine through its surface exhausts (primary ventilation system).

8. The primary ventilation system for the Workings consisted of a vertical raisebored intake surface shaft with three portable air chillers, that drew air into the Mine, and a second and separate vertical raisebored surface exhaust shaft, with two primary centrifugal exhaust fans (the Percy Fans), that drew contaminated air from the Workings.

9. The Percy Fans were two Howden MVC 2550 centrifugal fans. The Percy Fans were located next to the exhaust ventilation shaft of the Workings and an Aggreko 4.5MW refrigeration plant, consisting of three cooling towers and a water-cooled screw chiller, was located next to the Workings’ ventilation intake shaft.

10. Each Percy Fan had an impeller which, when rotated, created differential pressure to draw contaminated air from the Workings.

11. Ramps (which are the declines into the depths of the Workings) are the main thoroughfares used by vehicles and people accessing the Mine from the surface to its lowest level. Ramps are vital for the ventilation circuit and are a critical part of the primary ventilation system.

12. Some headings off the ramps in the Workings were blind headings that did not have flowthrough ventilation from the ramp. To ventilate a blind heading (also known as a dead-end) fans were hung from the backs (roof) and blew air off the ramp through ventilation ducting to the end of the heading (secondary ventilation system).

13. The continuous circulation of fresh air is essential to maintaining a safe and healthy atmosphere in an underground mine.

14. The primary ventilation system for the Workings was designed to draw fresh cool air down the ramp, and secondary fans were placed in locations to blow or push that air into blind headings.

15. A failure or outage of either or both of the Percy Fans would reduce the total airflow circulating through the Workings.

16. A reduction in airflow could lead to low flows and airflow reversal. Airflow reversal occurred when the direction of airflow in a particular airway reversed from its normal designed direction. Where the airflow reversed or where the flow in the ramp became less than the flow to any secondary fan, then the airflow through the secondary fan would recirculate.

17. Air recirculation occurred when the same air passed the same point more than once. As air passed a working location it picked up contaminants, including heat and diesel gases, which include carbon monoxide and nitrogen dioxide. When airflow was low, airflow reversed at low rates or recirculated, causing contaminants in that area, including heat and diesel gases, to increase.

18. Exposure to increases in heat could cause heat stress and heat illness. Exposure to increases in diesel gases could cause illness, including cardiac events.

Engagement of Jemrok Pty Ltd

19. Jemrok Pty Ltd (Jemrok) was a mining and civil infrastructure provider servicing the mining and civil sectors. Jemrok offered, among other things, a range of underground equipment for hire. This included the provision of jumbos for use in underground mines. A jumbo is a large machine that can be used to drill into rock, to break rock and to install bolts into rock walls.

20. In or about December 2016 the offender contracted Jemrok to develop the Perseverance Zone D ore body of the Mine. These works formed part of the offender’s undertaking at the Mine.

21. Mr Brilley was employed by Jemrok on 2 February 2017 to perform work as a jumbo operator at the Mine. He was experienced in this role, having worked for more than 15 years in underground mines at various locations around Australia.

22. Mr Brilley attended an induction at the Mine over two days on 6–7 February 2017.

The Planned Impeller Replacement Works

23. On 7 September 2016, the offender engaged Howden Australia Pty Ltd (Howden) to replace the two Percy Fan impellers (the Impeller Replacement Works). The Impeller Replacement Works were scheduled to commence on 3 April 2017.

24. The Impeller Replacement Works involved one of the two Percy Fans operating while the other Percy Fan was turned off to replace its impeller (the Planned Outage). Once the Impeller Replacement Works on one Percy Fan were complete, that procedure was to be repeated for the other Percy Fan. The Impeller Replacement Works, for both Percy Fans, were scheduled to take five days.

25. The offender decided to undertake in the Impeller Replacement Works in the months leading up to 3 April 2017. On about 28 March 2017, the offender decided that during the Planned Outage, workers, including Jemrok jumbo operators such as Mr Brilley, would continue to work underground. The offender had a meeting during which some of the risks to workers arising from the Impeller Replacement Works were discussed. Following that meeting, an email was sent by Christine Miles, Senior Production Engineer to, among others: Hubert Schimann, then Mine Manager; Randy Lition, Technical Services Superintendent; and the “Peak – Mine Engineers” email group. The Mine’s then Ventilation Engineer and Medium Term Planning Engineer, Dean Wall, was a recipient of the email.

26. The risk assessment conducted at the meeting identified control measures to manage risks to health and safety. These control measures included reducing the number of heavy vehicles operating below the 9080 level, increasing the operating capacity of the other Percy Fan and assigning Kevin Walsh, Technical Services Officer, the task of taking ventilation readings in the Workings on the afternoon of 3 April 2017. The afternoon ventilation readings were to include an assessment of airflows in the Workings after the commencement of the Planned Outage. There was also a procedure requiring shift supervisors to take heat readings on each shift.

27. The decision to assess airflows in the afternoon of the Planned Outage was informed by an incorrect assessment as to when the effect on air flow of the Impeller Replacement Works would commence underground. The assessment made by the Senior Production Engineer on behalf of the offender was that it would take approximately six to 12 hours after the commencement of the Impeller Replacement Works for the ventilation circuit to stabilise (Assessment). The Assessment was based on an event at the Workings in the second half of 2016 when one of the two Percy Fans was inoperable while works were being performed at the Workings (2016 Outage). That fan was not operating for approximately 12 hours before a change was noticed by the offender in the underground working environment. At the time of the 2016 Outage, the Mine was differently configured to the Workings on 3 April 2017. The change in configuration meant the size and direction ventilation parameters of the Workings were different.

28. Based on the Assessment, Ms Miles did not direct any morning Shift Supervisor to perform readings on 3 April 2017. In addition, the offender did not arrange to obtain any heat stress readings during the Impeller Replacement Works.

29. Exclusion zones were not identified as an initial control measure for managing risks to health and safety during the Impeller Replacement Works.

30. On 31 March 2017 the offender completed a Job Safety Analysis (JSA) headed, “Change perseverance fan impellors”. The scope of the JSA was the work to be carried out on the surface. The JSA addressed set up, replacement and re-instalment of the Percy Fans during the Impeller Replacement Works. The JSA did not identify hazards to workers underground during the Planned Outage.

31. Prior to the Impeller Replacement Works commencing, the offender conducted an inadequate risk assessment to identify the risks to workers, including Mr Brilley, arising from working underground during the Planned Outage.

32. The offender knew, or ought to have known, that any outage of either or both of the Percy Fans would reduce the total airflow circulating through the Mine, including at the Workings. Depending on the degree of reduction, the reduced airflow may not have been sufficient to keep contaminants, including heat and diesel gases, within safe levels for underground workers.

33. The offender also knew that any reduction in total airflow circulating through the Mine, including at the Workings, could result in low flows and airflow reversal.

34. As part of its approach to managing ventilation in the Mine, the offender had available for use, ventilation computer simulation modelling software called Ventsim. Ventsim was used for predicting underground airflow volumetric flow rates, wind (air) speeds and the airflow directions in the Mine. Prior to the Impeller Replacement Works commencing, the offender did not utilise Ventsim to create any models for the Workings during the Planned Outage.

35. The Impeller Replacement Works were major works which caused a significant change to the ventilation system within the meaning of cl 61 of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (the Regulations). Clause 61 required that a mine operator must ensure ‘before any significant change is made to the ventilation system for the mine, modelling of that change is carried out’.

36. The offender required workers conducting drilling operations, including Mr Brilley, to carry a personal gas monitor capable of detecting gases that were likely to be encountered while performing drilling work in the Workings. However, the personal gas monitors made available to workers did not measure all diesel gases. On 3 April 2017, Mr Brilley carried a personal gas monitor when he entered the Workings.

37. Other than requiring certain workers to carry with them a personal gas monitor while working in the Workings:

1. prior to the Impeller Replacement Works on 3 April 2017, the offender did not arrange to test for diesel gases during the Planned Outage;

2. the offender did not conduct any testing of this kind before permitting and/or directing any workers to work in the Workings;

3. the offender did not conduct any testing of this kind on or after the commencement of work by workers before approximately 2pm to 2.15pm on 3 April 2017.

The Impeller Replacement Works

38. On 3 April 2017, Mr Brilley arrived at the mine at 6.14am to begin an overtime day shift. Mr Brilley had not been at work for the five days preceding 3 April 2017, during which time he had been in Cobar, where he lived.

39. Hydration testing was completed at the start of the shift as part of the offender’s hydration testing program. Jemrok understood that workers would be subject to such testing. Four hydration tests were conducted at random on 3 April 2017. The offender did not test Mr Brilley’s hydration levels.

40. Water bottles, access to drinking water, electrolyte supplements and ice machines were made available underground by the offender to assist workers to manage their hydration.

41. Before Mr Brilley began his shift, he and other workers, attended the Mine ‘morning pre-shift huddle’ conducted by the offender’s No. 2 crew shift supervisor, Benjamin Plush. The huddle communication document (Morning Huddle Communication Form) noted, “Impeller change on percy fans, 1 truck + 1 LHD below 9080” and this matter was discussed during the morning pre-shift huddle. Patrick Quinn, a Jemrok Supervisor, and Chris Finch, the Jemrok Development Manager, attended the morning pre-shift huddle.

42. At about 10am on 3 April 2017, Howden isolated one Percy Fan (the Outage). From that time on, only the other Percy Fan operated.

43. Within about 15 minutes of the commencement of the Outage, the air volume flows above the 9080 level altered. After the commencement of the Outage, the air volume flows and air directions at the 9460 level and at least two locations at the 9300 level in the Workings, namely “9300 South SP” and “9300 South Face” (together, the 9300 Workplace), altered.

44. The 9300 level of the Workings was approximately 955 metres below the surface. I pause to note that the different levels of the Mine were referred to by their metres reduced level measurement (mRL). The lower the mRL the further below ground it was. In other words the 9080 level was further below the surface than the 9300 level.

45. The normal flow of air through the ramp to the 9300 level of the Workings reversed from 70–75 m³/s going down the ramp to 2–5 m³/s going up the ramp during the Outage, and the air at the 9300 Workplace started to recirculate. The percentage of recirculation through the secondary fan was about 83%.

46. The recirculation at the 9300 Workplace caused a further increase in the concentration of contaminants, including heat and diesel gases.

47. Wet bulb temperature is the temperature of air recorded by a thermometer while the bulb is surrounded by a wet cloth exposed to the air. The wet bulb temperature is a measurement that reflects the physical properties of a system with a mix of gas and vapour.

48. Dry bulb temperature is temperature of air recorded by a thermometer not affected by moisture in the air. Dry bulb temperature is the ambient temperature value.

49. The elevated concentrations of heat at the 9300 Workplace resulted in elevated dry and wet bulb temperatures. Exposure to elevated concentrations of heat resulted in the elevated risk of heat stress and heat illness to anyone working at the 9300 Workplace.

50. The elevated risk of heat stress and heat illness resulted in an elevated risk of a cardiac event to anyone working at the 9300 Workplace, including Mr Brilley.

51. Early on during his shift on 3 April 2017, Mr Brilley worked at the 9460 level. During his time at this level, Mr Brilley was visited by Mr Finch between approximately 9.15am and 10.30am. Mr Quinn also visited Mr Brilley whilst he was working on the 9460 level at approximately 10am to assist Mr Brilley with the task of bolting.

52. Before 1pm, Mr Brilley moved from the 9460 level to the 9300 Workplace. He operated his jumbo alone. Operating a jumbo can be a strenuous role. The jumbo had an open cabin which meant it had no windows or air conditioning.

53. Secondary ventilation at the 9300 level of the Workings was provided by a 55kW Clemcorp fan hung in the decline ramp.

54. Before approximately 12.10pm, Mr Finch visited Mr Brilley again when he was working at the 9300 Workplace. Mr Finch was finishing his underground inspections. Mr Quinn also visited Mr Brilley again at approximately 1pm to assist Mr Brilley with the task of bolting. Mr Quinn left Mr Brilley at approximately 2pm. During these visits, Mr Finch and Mr Quinn did not observe anything which suggested to them that Mr Brilley was unwell. They also stated that they did not observe anything unusual about the working conditions at the time.

55. The combination of low air flows, airflow reversals and air recirculation in the 9300 Workplace as a result of the Impeller Replacement Works meant that the concentrations of heat and diesel gases produced were above normal levels.

56. Before 1pm on 3 April 2017, the offender did not conduct any airflow and/or heat readings at the 9300 level of the Mine.

57. The offender had a policy to withdraw workers from the Mine if the wet bulb temperature went above 32 degrees Celsius.

58. The offender did not conduct any airflow and/or heat readings above or at the 9300 Workplace of the Workings before permitting and/or directing workers, including Mr Brilley, to work at the 9460 level or the 9300 Workplace during the Outage. Nor did the Offender do so once workers, including Mr Brilley, commenced work at those levels at about 2pm.

59. In order to monitor the risk of heat to workers working underground, the offender measured the Thermal Work Limit Index (TWL) using a Calor Heat Stress Monitor. It was the offender’s practice that Shift Supervisors would take heat readings in various parts of the Mine using these monitors. The monitors measured (among other things) wet bulb, dry bulb and wind speed to calculate the TWL. Higher temperatures within a mine resulted in lower TWL readings.

60. The offender had a “working in heat” policy for managing TWL. If a TWL limit read greater than 220, there was no need to place any restrictions on workers (in relation to working in heat) (known as an “Unrestricted Zone”). If a TWL limit read between 140 and 220, unacclimatised workers were not to work alone (known as “Acclimatisation Zone”). If a TWL limit read between 115 and 140, a number of restrictions applied (known as a “Buffer Zone”). If a TWL limit read less than 115, workers were required to be withdrawn from that area (known as a “Withdrawal Zone”).

38. Between 1 February 2017 and 3 April 2017, the offender recorded the following heat readings in the Mine:

1. 159 acclimatisation TWL;

2. 28 buffer zone TWL;

3. 17 worker withdrawal TWL; and

4. 174 unrestricted TWL.

62. Before 3 April 2017, the Senior Production Engineer had been copied into an email from Mr Wall to a contractor working at the mine which included concerns about ventilation and hot working environments in the Mine.

63. The offender did not conduct any hydration tests for any workers, including Mr Brilley, working at the 9460 level or the 9300 Workplace at intervals during the Outage and before about 2pm.

The incident on 3 April 2017

64. At approximately 2.15pm on 3 April 2017, Mr Brilley contacted Mr Quinn using the Mine’s radio system to inquire if either Mr Quinn or Anthony Whyte, a Jemrock Fitter, was nearby.

65. Shortly thereafter, Mr Whyte attended the 9300 Workplace in a Toyota Landcruiser vehicle. Mr Brilley got into the passenger seat and complained to Mr Whyte about feeling hot and dehydrated.

66. Mr Brilley and Mr Whyte drove from the 9300 Workplace to a crib room. Mr Brilley remained in the vehicle. Mr Quinn spoke to Mr Brilley and observed vomit in the vehicle. Mr Brilley had a 5-litre water bottle resting on his lap and, according to Mr Quinn, it looked like Mr Brilley had poured the water over himself to clean off the vomit.

67. Mr Whyte then drove Mr Brilley towards the surface of the Mine, with Mr Quinn following in another vehicle. On the way to the surface, Mr Whyte stopped the vehicle he was driving and used the Mine’s radio system to inform Mr Quinn that there was an emergency. Mr Quinn approached the vehicle and observed Mr Brilley unconscious in the passenger seat. Mr Quinn checked for a response and commenced CPR on Mr Brilley. Another worker, Heath Budd then took over performing CPR on Mr Brilley, and Mr Quinn continued the drive towards the surface of the Mine. Mr Whyte followed in the other vehicle.

68. Mr Brilley continued to receive CPR during the journey to the surface. On their way to the surface, the vehicles passed the Mine Rescue Ambulance.

69. The vehicles reached the surface at approximately 2.57pm. Mr Brilley continued to receive CPR and other treatment until approximately 3.02pm, when the Ambulance Service arrived and took over the care of Mr Brilley.

70. Mr Brilley arrived at Cobar Hospital in an ambulance at approximately 3.39pm. Mr Brilley was pronounced deceased at 3.50pm.

71. At the 9300 Workplace, Mr Brilley was exposed to elevated dry and wet bulb temperatures.

72. The risk arising from exposure to elevated levels of heat was compounded by the exposure to elevated concentrations of diesel gases.

73. The elevated risk of heat stress and heat illness resulted in an elevated risk of a cardiac event to anyone working at the 9300 Workplace, including Mr Brilley.

74. While working at the 9300 Workplace during the Impeller Replacement Works, Mr Brilley suffered a cardiac event. The cardiac event resulted in Mr Brilley’s death.

The causation issue

75. As part of the brief of evidence, the prosecutor served three expert reports prepared by Dr Derrick Brake, a ventilation expert. In response, the offender served two reports of Mr Andrew Derrington, also a ventilation expert. There were a number of matters between the ventilation experts that were in issue but have not been necessary to resolve.

76. Mr Brilley had a pre-existing stenosis of approximately 50% of the left coronary artery. It was common ground that this blockage dislodged and entered the left ventricle of his heart causing an acute myocardial infarction (heart attack). The autopsy report dated 29 June 2017 prepared by Dr Hannah Elstub and Dr Allan Cala stated:

The possible contribution of hyperthermia (based on the description of the deceased feeling hot whilst working in an underground mine in the afternoon) is unable to be determined at autopsy. None of the sequelae of hyperthermia were identified however these usually have a delayed presentation.

77. On 17 July 2017, Professor Tim Lyons, the Clinical Director of the NSW Forensic and Analytical Science Service sent a letter to the prosecutor after discussing the case with Dr Cala, in which he stated:

This man had severe pre-existent cardiac pathology and the circumstances of death are highly suggestive of a sudden cardiac death…

In conclusion, this man had severe pre-existent heart disease that could have caused him to collapse and die at any point in time. Although the working environment was one where there was clearly physiological stress (hyperthermia and dehydration) from a forensic autopsy perspective there is no way to confirm or refute their role in his death.

78. Professor Anne Keogh AM, cardiologist, provided an expert report to the prosecutor dated 22 September 2019 (the first report) in which she opined that Mr Brilley’s chances of dying suddenly from his pre-existing condition were “negligible”. Based on the expert opinion of Dr Brake, which was provided to her, Professor Keogh opined that the heat, inadequate ventilation and recirculation of toxic diesel gases subjected Mr Brilley’s body to severe physiological stresses that caused his acute myocardial infarction and sudden death.

79. On 26 October 2020 the offender entered a plea of guilty and the matter was set down for a one day sentence hearing.

80. On 14 May 2021 the matter was relisted for a three day sentence hearing on the basis that there would be cross-examination of experts on the causation issue.

81. On 28 August 2021, Professor Keogh provided a second report after being provided with all of the reports of the ventilation experts and the report of Professor Lyons and being asked to review them. Professor Keogh stated that she maintained the opinion set out in her first report, stating that it could be justified on the basis of the opinion of either of the ventilation experts. Professor Keogh agreed with Professor Lyons that no reliable evidence of hyperthermia would be available at autopsy, but disagreed, based on her more relevant expertise, that the extent of Mr Brilley’s pre-existing condition was severe or that it was independently capable of causing his death.

82. Professor Keogh’s report was served on the offender on 30 August 2021. On 17 September 2021, the offender advised the prosecutor that it no longer required any expert witness for cross-examination.

83. The sentence hearing was completed on the first day of the sentence hearing.

The offender’s case on sentence

84. The offender relied on an affidavit sworn by Ms Shae Maree Martin on 21 September 2021. The content of Ms Martin’s affidavit can be summarised as follows. I will not repeat matters I have already referred to.

85. Ms Martin was employed by the offender in the position of Health and Safety Compliance Superintendent at the Mine. Ms Martin had held this position since May 2017 but had previously worked at the Mine in different positions from 2000 to 2005. She had over 20 years’ experience in the health and safety sector of the mining industry. She also had a number of supporting qualifications and had undertaken training and coursework, some of which was specific to the mining industry.

86. The offender was founded in 1987 and has continuously operated the Mine since 1991. At the time of the incident, the offender employed approximately 300 people and engaged 57 contractors.

Safety systems as at 3 April 2017

87. The offender had a safety management system (SMS) in place at the time of the contravention. Ms Martin deposed only to those elements of the SMS that were relevant to the contravention.

88. The SMS in place at the Mine as at 3 April 2017 was an integrated system for the management of risk at the Mine. It consisted of policies, principal hazard management plans, procedures, forms, registers and guidelines, training and compliance, including external auditing from time to time.

89. The offender’s SMS included POL-001 Health and Safety Policy, PLN-01-085 Ventilation Control Plan, MNL-01-081 Underground Mine Ventilation Manual, and PRO-06-010 Risk Management Procedure.

90. Management Inspections, Safe Act Observations and Leadership Site Visits were also conducted at the Mine. “Work health and safety” was also a standing agenda item at the meetings of the Mine’s Management Team and WHS Committee.

Ventilation

91. The offender had primary and secondary ventilation systems in place at the Mine. Hazard management relating to ventilation was set out in the Underground Mine Ventilation Manual.

Management of heat

92. The offender had prepared a “Heat Illness” and a “Working in Heat” training package. The “Heat Illness” presentation focussed on preventing, identifying, and addressing the signs and symptoms of heat stress. The “Working in Heat” presentation set out the approach to hydration testing at the Mine and explained how the Thermal Working Limit (TWL) measured and assessed working environments. These presentations were delivered to all workers on site.

93. To ensure workers remained hydrated, the offender also provided water bottles, drinking water, electrolyte replacement supplements, and ice machines in crib rooms. The offender also had in place a program for hydration testing at the Mine, 1091-015 Standing Order Hydration Testing, which provided for random and targeted hydration testing on all workers, including contractors.

94. TWL readings were also required to be taken by a Shift Supervisor during each shift (day and night) using a heat stress monitor (HSM), with the results of the readings to be recorded in a “HSM Readings” sheet which would then be recorded in the HSM Data Log.

Management of diesel gases

95. The offender was aware that gaseous contaminants, including diesel gas, could be present in the underground working areas of the Mine. Diesel equipment was tested every six months for exhaust emissions using an exhaust analyser which tested for carbon monoxide, nitric oxide, oxides of nitrogen, and nitrogen dioxide. Pre-checks of jumbos, before drilling commenced, were also required.

96. The offender also had in place PRO-01-008 Gas Hazard Management Procedure, which required personal gas monitors to be carried by workers during all drilling operations at the Mine.

97. Altair 4XR personal gas monitors, which measured oxygen, carbon monoxide, hydrogen dioxide and combination explosive gas, were also available on site. If certain exposure levels to these gases were detected, an alarm on the monitor would be triggered and workers would be required to leave the area until further gas testing revealed that it was safe to resume work in that area.

Contractor management

98. The offender had in place a plan entitled “PLN-06-034 Contractor Management Plan”. The selection, engagement, and supervision of contractors were an important part of the management of risks to health and safety at the Mine. Ms Martin deposed that contractor management involved a stages including, prior to engagement, consultations with the prospective contractor on the SMS that would apply and, prior to work commencing, contracted workers completing the site induction.

99. In the case of Jemrok’s engagement, it was agreed that the offender’s SMS was the SMS that would apply, and Mr Brilley as an employee of Jemrok completed the mandatory site induction over two days on 6-7 February 2017.

Steps taken post-incident

100. On the afternoon of 3 April 2017, operations were suspended and all workers were withdrawn from the Mine. The offender also notified the incident to the NSW Resources Regulator.

101. Sue Mitchell, Mr Brilley’s mother, was collected from her work area at the Mine and accompanied to the hospital by Sue Ham, the Mine’s Human Resources and Health, Safety and Compliance Manager. Shortly afterwards, Mrs Mitchell travelled to the home of Mr Brilley’s partner, Rebecca Miller, followed by Mrs Ham and Sue-Ellen Dunne, a Payroll Coordinator at the Mine.

102. Counselling was offered to workers who were involved in the incident through AWI Consulting, the Mine’s Employee Assistance Program provider, and workers were encouraged to use this service in the weeks following the incident.

103. Mining resumed on 6 April 2017.

Support for Mr Brilley’s family

104. The offender expressed deep remorse for its contravention and the risk posed to Mr Brilley. Ms Martin deposed that the death of Mr Brilley had had a deep impact on the Mine given the closeness of the community and the fact that the Mine was one of the main sources of local employment in Cobar.

105. The offender established education trust funds for each of Mr Brilley’s three children and contributed an amount of $100,000 which was divided equally for each trust. The offender also engaged a financial planner to assist Ms Miller with Mr Brilley’s superannuation and estate planning, and covered the costs of a lawyer who was engaged to arrange Letters of Administration.

106. The offender also facilitated payroll deductions from workers at the Mine to contribute towards a lump sum payment for the family, and held a memorial and installed a plaque at the Mine in remembrance of Mr Brilley.

Improvement to impeller replacement works

107. The offender amended and improved its approach to impeller replacement works (IRWs) as a result of the incident.

108. Ms Martin deposed that the process to be followed in the event of IRWs, following the incident, is as set out below:

1. Planning and comprehensive assessments of proposed IRWs.

2. Ventsim modelling by the Ventilation Engineer prior to the commencement of IRWs for the purpose of identifying and either managing and monitoring, or if necessary closing and cordoning off, any area of the Mine where the IRWs could cause inadequate ventilation.

3. The issuing of a “Ventilation Direction” by the Ventilation Engineer. On days where Ventsim modelling indicated that added controls were required to manage risk, this Ventilation Direction would identify and describe the added controls that are to be put in place.

4. On the day of the planned IRWs, discussion of the works at the pre-shift meeting and the Morning Huddle Communication.

5. Use of radios by maintenance personnel to communicate and confirm with Shift Supervisors that the IRWs could start.

6. Final checks and ongoing monitoring by the Ventilation Engineer relating to compliance with the Ventilation Direction and adequate underground ventilation during the outage, and continued auditing of compliance by Shift Supervisors.

7. In the event of unexpected failure of a significant part of the primary ventilation system, withdrawal of workers until a plan was developed and implemented.

Improvement to safety systems

109. In addition to reforming its approach to IRWs, the offender amended and improved its SMS following the incident.

110. The offender implemented PLN-01-089 Heat Stress Management Plan (HSMP). The HSMP was presented to all crews in May 2017. The HSMP explains how to respond when a worker appears to be experiencing a heat-related illness, and changed the requirements for when a “Permit to Work in Hot Areas” would apply. The HSMP also covers the monitoring of working conditions by Shift Supervisors, and requires that heat readings be recorded in the “HSM Readings” sheet. The HSMP is regularly reviewed and updated, with the current version being PLN-06-063.

111. The offender also replaced the Standing Order Dehydration Testing with PRO-01-092 Hydration Testing in Mining Operations. This revised procedure expanded the scope of who could carry out hydration testing on site; trained more personnel on how to conduct hydration testing, and expressly provides for hydration testing to be carried out underground at the 630 level of the Mine.

112. The offender also purchased 13 new Kestral-branded HSMs for the Mine, which allow more heat readings to be taken during shifts, and developed operating procedures for each brand of HSM to assist in the proper and effective use of HSMs on site.

113. The offender also developed a Shift Supervisor Handover Form to be completed by Shift Supervisors at the end of their shift. This Form includes a section to record heat readings taken underground, hydration testing, and hazards identified.

114. The offender also engaged a heat stress consultant, Dr Matt Brearley from Thermal Hyperformance Pty Ltd. Dr Brearley delivered education and awareness sessions for workers on the effects and management of working in heat and also carried out physiological testing with underground workers. The results of the physiological testing formed the basis of a report provided by Dr Brearley making recommendations in relation to heat stress. The offender adopted all of the recommendations contained in Dr Brearley’s report.

The offender’s ongoing commitment to safety

115. Ms Martin deposed that the offender remains committed to the management of all risks to health and safety that arise from the operation of the Mine, with the health and safety of employees and contractors being said to be the top priority.

116. Improvements in the offender’s safety performance since the incident were evidenced by statistics collected at the Mine. The offender’s SMS has been, and continues to be, subject to review, revision and consultation. A full internal review is conducted at least every three years.

117. The purchase of the offender by Aurelia Metals Limited (Aurelia) has also meant that the offender is subject to a business-wide policy entitled “Aurelia Metals – Safe Metals” (Safe Metals Strategy), introduced by Aurelia since the purchase. The Safe Metals Strategy involves: active intervention plans and actions to correct injury rates for poor performing operations/teams; benchmarking and establishing mandated standards and controls to address fatal hazards in workplace environments; implementation of appropriate systems, training and communication to underpin continuous improvement in the objectives of the Safe Metals Strategy. The Strategy also introduced Aurelia’s “Rules to Live By”, which address high-risk work activities and contribute to a standard operating criterion aimed towards the prevention of fatal incidents.

The offender’s community investment and other matters

118. Ms Martin also deposed that the offender was conscious of its role in the community working alongside, and making regular and one-off financial contributions to, a number of local community groups. Between 2018 and up to and including this year, the offender has donated $151,557 locally.

119. Ms Martin also deposed to the fact that the offender: had been cooperative with, and provided assistance to, the NSW Resources Regulator throughout the conduct of its investigation; has no prior convictions for a contravention of the Act (or predecessors); and has shown commitment to providing a safe and healthy working environment through the steps taken since the incident.

Other evidence

120. The offender also relied on the reports of Mr Derrington and Professor Lyons and the autopsy report which I have already referred to and it is unnecessary to refer to further.

Consideration

121. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

122. The offence is one of considerable objective gravity.

123. The risk was obvious and well known to the offender. The offender knew that the Impeller Replacement Works were likely to the adversely affect the ventilation of the Mine and could result in dangers to the health and safety of the workers engaged underground while those works took place.

124. The likelihood of the risk occurring was high. The reduction in the extraction of air from the Mine was almost certain to increase the concentrations of contaminants in the air in the Workings.

125. The potential consequences of the risk involved a risk being posed to any person working underground. The risk included a risk of death.

126. The steps that could have been taken to avoid or minimise the risk were simple steps that were known to the offender and involved little expense or inconvenience. The risk assessment conducted by the offender was wholly inadequate and was based on engineering judgment that had the potential to be fallible and proved to be so. The offender had the capacity to model the likely consequences of the Outage on the ventilation of the Mine, rather than to rely on its limited experience of one similar event. It was required by the Regulations to model the change. The offender had the capacity to monitor conditions of the Mine during the Outage but did not do on the basis of the same flawed assessment. The offender could have made adjustments to the ventilation system and/or the arrangements to withdraw workers from Workings while the Impeller Replacement Works were undertaken. The efficacy of the ventilation system was fundamental safe operation of the Mine. The steps taken by the offender fell well short of the standard of care required, to ensure the health and safety of the workers.

122. The extent of the harm was substantial. The death of Mr Brilley is an aggravating feature of the offence.

123. I have taken into account the maximum penalty for the offence.

Deterrence

129. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

130. The penalty imposed must also provide for specific deterrence. The offender continues to operate a business that poses a significant risk to the health and safety of its workers. I note that the offender has taken extensive steps to improve its safety systems since the incident.

Aggravating Factors

131. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the death of Mr Brilley is sufficient to establish the aggravating factor.

Mitigating Factors

132. The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 1987 and has continuously operated the Mine since 1991.

133. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by its commitment to improving its safety systems since the incident, that it has good prospects of rehabilitation.

134. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Ms Martin deposed that the offender accepted responsibility for its contravention of the Act. The offender has also paid some funds to Mr Brilley’s family in reparation.. I am also satisfied that through Ms Martin’s evidence and through its concession of the causation issue that the offender has acknowledged the death of Mr Brilley as a consequence of the offence.

135. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. In this case, the offender entered a plea of guilty in October 2020, which was an early plea, but disputed the causation issue. On the basis of the information it had been given by the prosecutor at that time, its position was a reasonable one. The causation issue was fairly arguable, especially when the prosecutor had to prove it to the criminal standard. It was not until a few weeks before the sentence hearing that the prosecutor served a further report of Professor Keogh that strengthened the prosecutor’s case substantially. The utilitarian value flowing from a plea of guilty is not fixed and can be eroded by the way in which the sentence hearing is conducted: R v AB [2011] NSWCCA 229 at [2] (Bathurst CJ) and [33] (Johnson J). In the end, the offender’s concession of the causation issue was timely, occurring a few weeks after Professor Keogh’s second report was served. It also dispensed with the need to resolve the disputes between the ventilation experts. The sentence hearing was completed expediently within one day. The appropriate discount in all of the circumstances of this case is 20%.

136. The offender co-operated with the investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

137. The offender has demonstrated itself to be a good corporate citizen by its involvement in charitable and community causes.

Penalty

138. Peak Gold Mines Pty Ltd is convicted.

139. I have taken into account the Victim Impact Statement (VIS) of Sue Mitchell, Mr Brilley’s mother. Ms Mitchell was at the Mine on the day of the incident and as a result she suffered the trauma of the death of her son in close quarters. The Court appreciates the time and effort put into the VIS. The experience of the VIS being read aloud was a moving tribute to a much loved son, partner, father, brother and friend. I have taken into account the impact of Mr Brilley’s death on his family as harm done to the community.

140. The appropriate fine is one of $600,000 that will be reduced by 20% to give effect to the plea of guilty.

141. I impose a fine of $480,000.

142. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

143. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Amendments

21 October 2021 - Name of Prosecutor changed on cover sheet

Decision last updated: 21 October 2021