Linnane (NSW Department of Planning and Environment) v Cummings

[2020] NSWDC 587

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 587

Hearing dates:

7-11 September 2020; 14-16 September 2020

Date of orders:

1 October 2020

Decision date:

01 October 2020

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 I find the defendant guilty of the s 32 offence relating to the breach of s 21 of the Act.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – statutory duty of person conducting a business or undertaking with management or control of plant to ensure health and safety of persons so far as reasonably practicable – engineering controls – reasonable practicability of modifying hydraulic hoist to avoid risk – exposure of worker to risk of death or serious personal injury

Legislation Cited:

Occupational Health and Safety Act 2000

Work Health and Safety Act 2011

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

Work Health and Safety Regulation 2011

Cases Cited:

Baiada Poultry Pty Ltd v R (2012) 246 CLR 92

Bulga Underground Operations v Nash [2016] NSWCCA 37

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

Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209

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

Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676

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

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

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

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117

McMillan Britton and Kell Pty Ltd v WorkCoverAuthority (NSW) (1999) 89 IR 464

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

R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321

R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332

Royall v The Queen (1991) 172 CLR 378

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316

Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304

Smith v Broken Hill Pty Ltd (1957) 97 CLR 337

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94

WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

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

WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80

WorkCover Authority of NSW v Woolworths Ltd [1994] NSWIRComm 207

Category:

Principal judgment

Parties:

Anthony Linnane (NSW Department of Planning and Environment) v Tony Glenn Cummings

Representation:

Counsel: I Taylor SC/G Lewer (Prosecution)
R Clifford (Defendant)

Solicitors: McCulloch Robertson (Prosecution)
Browne Jeppesen and Sligar (Defendant)

File Number(s):

2018/336909 and 2018/336887

Publication restriction:

None

Judgment

Introduction

1. Tony Glenn Cummings has pleaded not guilty to the following charges, brought in the alternative:

1. that as a person who had a health and safety duty under section 21 Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Mark Siegel, to a risk of death or serious injury contrary to section 32 of the Act (the first charge);

2. that as a person who had a health and safety duty under section 25 of the Act, he failed to comply with that duty and thereby exposed Mr Siegel, to a risk of death or serious injury contrary to section 32 of the Act (the second charge).

2. On 4 November 2016 Mr Siegel was removing dirt and rock (mullock) from an underground opal mine using a large metal bucket attached an electrically powered hydraulic hoist installed at the top of the main shaft. During the course of its operation, the hoist malfunctioned and the bucket became stuck near the top of the hoist. Mr Siegel informed another worker Paul Ellis of the problem. Mr Ellis told Mr Siegel to wait while he went to the surface to investigate. As Mr Ellis was on his way to the access shaft he heard the bucket free falling into the main shaft. He turned and saw Mr Siegel trying to get out of a hole at the bottom of the main shaft (the sump), when he was struck and killed by the bucket. Mr Ellis believed that Mr Siegel had inadvertently activated the lower limit switch in the sump causing the power to the hoist to be deactivated which allowed the bucket to fall.

3. The defendant admitted that he was conducting an undertaking at the mine and that he was the owner of the hoist installed at the mine.

4. The issues in the case are:

1. Did the defendant have management or control of the hoist installed at the mine? (Issue 1)

2. Was the defendant a supplier of the hoist at the mine? (Issue 2)

3. Did the defendant breach the health and safety duties that he owned by failing to take the steps particularised in [12] of the Summonses?

4. Did the defendant’s breach of duty expose Mr Siegel to a risk of death or serious injury? (Issue 4)

Facts

General Background

5. The mine was located on the mineral claim 44507 in an area known as Mulga Rush on the Grawin Opal Fields, about 80km south-west of Lightning Ridge.

6. The Grawin Opal Fields consist of about 3,000 mineral claims worked by about 8,000 miners. Most miners work their claims on a part-time basis, with only about 15% of miners working on a full-time basis. As one person can only hold 2 mineral claims at a time it is common for claims to be registered in the name of a person other than the true owner

7. Gisela Hanna Gruenefeld, Mr Siegel’s mother, was registered as the holder of the mineral claim. Harald Gruenefeld, Mr Siegel’s step-father, was the nominated Mine Operator/General Manager of the mine, within the meaning of s 7A Work Health and Safety (Mines and Petroleum) Sites Act 2013.

8. The defendant knew Mr Siegel for about 15 years. In about 2012, the defendant purchased the Glengarry Hilton Hotel at the Grawin Opal Fields from Mr and Mrs Gruenefeld. At that time Mr Siegel was working as a cleaner at the hotel and he stayed in that role after the defendant took ownership of the hotel. Mr and Mrs Gruenefeld moved away from the area at that time and the defendant began to look after Mr Siegel and to assist him with paperwork and other matters.

9. Mr Siegel told the defendant that the mine was his and suggested that they work it together. The defendant initially refused to assist Mr Siegel because he considered him to be unreliable. To the defendant’s observation, Mr Siegel regularly turned up drunk to clean the hotel in the mornings and was a heavy user of cannabis. Mr Siegel was known on the opal fields by the nickname “Mad Mark” which was a reference to how he approached many things such as driving, drinking, working and playing. The defendant told Mr Siegel that he would reconsider his proposal if he cleaned up his act and cut back his drinking and drug use.

10. Over the next few years, the defendant and Mr Siegel became close friends. Mr Siegel cut back his drinking and smoking and his behaviour improved. Mr Siegel continued to propose to the defendant that they should enter into a partnership to work the mine.

The Work at the Mine

11. In or about the end of 2015 the defendant was taking some equipment that he owned out of a mine that he had been working at Weewarra. The equipment consisted of a digger, a bogger, a hoist and a diesel generator that was mounted inside a shipping container. The defendant had purchased the equipment second hand in about 2011.

12. Mr Siegel and the defendant entered into an agreement to split the profit equally from working the mine on the basis that the defendant supplied the equipment to be used to conduct the mining activities and that Mr Siegel allowed access to the mine. Following that agreement, the defendant, Mr Siegel and Mr Ellis brought equipment owned by the defendant to the mine, including the “Ag Fab Super Hoist” (the hoist). The hoist was installed over the main shaft by the defendant, Mr Siegel and Mr Ellis, with the assistance of Christopher Burden. From about September 2016, Mr Siegel, Mr Ellis and the defendant attended from time to time and carried out work to extract opals from the mine.

13. The mining work was undertaken using the digger to extract mullock from the walls of the mine. The mullock was then scooped up using the bogger and stored in its bin. The bogger was then taken to the main shaft and the contents of the bogger’s bin were then transferred by a chute on the bogger into the bucket attached to the hoist. The sump was dug at the bottom of the main shaft to house the bucket, so that when it was loaded it sat below the floor of the mine. The electrical power required to operate the equipment and the lighting in the mine was supplied by the generator.

The Operation of the Hoist

14. The hoist raised and lowered the bucket by the winding of a steel cable on and off a cable drum. The bucket ran along rails that were curved over the top of the frame of the hoist at the top and continued down the shaft to the bottom of the sump. When the bucket was raised to the top of the hoist it was pulled over the arc and would empty via gravity. The bucket would then lower back into the shaft to the bottom of the sump.

15. The hoist was operated by electrical and hydraulic power. An electric motor drove a hydraulic pump that pumped oil around the hydraulic system. The oil drove two hydraulic motors, one on each side of the cable drum that raised and lowered the bucket via a steel cable wound onto the cable drum. The hydraulic motors could operate in forward or reverse. The spool valve acted as a “gear stick” to operate the hydraulic motors in forward or reverse. An electrical signal sent to the “up” or “down” solenoids, slid the spool valve to the left or right allowing oil to drive the hydraulic motors in either forward or reverse. When the system was unpowered the spool valve was in neutral and it did not impede the flow of oil in any direction. The counterbalance valve acted as a “hand brake” on the hydraulic motors when the bucket was being lowered. The bucket weighed 130kg when it was empty. The weight of the bucket on the steel cable provided a load on the cable drum that sought to rotate the hydraulic motors in reverse. The counterbalance valve allowed the flow of oil in the hydraulic system to drive the hydraulic motors in the forward direction but prevented the flow of oil that would allow the hydraulic motors to operate in reverse, thus acting as a “counterbalance” to the weight of the bucket. The counterbalance valve was single-acting, in that it prevented the hydraulic motors and hence the cable drum from rotating in the reverse direction but did not impede the hydraulic motors and the cable drum from rotating in the forward direction.

16. The hoist was intended to operate in a semi-automatic fashion. This was achieved by the following steps. First, pressing the “up” button activated the electric motor to drive the hydraulic pump to commence the flow of oil in the hydraulic system and sent an electrical signal to the “up” solenoid to slide the spool valve to the left, allowing the flow of oil to drive the hydraulic motors and the cable drum in the forward direction to raise the bucket. Second, when the bucket got to the top of the arc it pulled a lever that activated the top limit switch. Third, after a delay of three seconds to allow the bucket to empty, an electrical signal was sent to the down solenoid of the spool valve to move it to the right and engage the hydraulic motors to turn the cable drum in the reverse direction and lower the bucket. Fourth, when the bucket reached the bottom of the sump a metal tab on the side of the bucket activated the lower limit switch that turned off the electrical power to the hoist.

17. It was a known risk that if the bucket did not activate the lower limit switch, the electric motor to the hoist would keep running and the cable would completely unspool before winding back on to the cable drum in the opposite direction. This was referred to in the evidence as an “overspool” and could occur if there was spillage of mullock in the sump that prevented the bucket from getting to the bottom of the sump so that the metal tab mounted on the side of the bucket could make contact with the lower limit switch. This would cause the bucket to get stuck at the top of the hoist because when the cable was spooled in the wrong direction it could not be pulled with sufficient force to pull the lever and commence the lowering sequence. The electric motor continued to operate in that state to hold the bucket in the stuck position. However, if power to the motor was cut, for example by pressing the emergency stop button, the bucket would not be held by the motor and it could free fall down the shaft.

18. It was common ground that Mr Ellis was aware of the risk and had seen buckets free fall at other mines. Whether the bucket had free fallen into the shaft at the mine in the two or three months before the incident was in dispute and I will return to that issue later.

19. If it was necessary to clean out spillage from the sump at the mine the workers had adopted a procedure of using the hoist to lift the bucket above the sump, just high enough to allow a person to get into the sump. A crowbar was then placed across the sump to prevent the bucket going down into the sump and it was secured in place with a chain. It was common ground that it was dangerous to enter a shaft underneath a suspended load such as a bucket, without taking those types of precautions.

20. In or about early October 2016 the defendant arranged for Greg Coulthard to attend the mine and undertake work on the hoist. A few days later, Mr Coulthard attended and replaced the top limit switch on the top of the hoist. Mr Coulthard tested the hoist after he replaced the top limit switch and it operated normally.

The Incident

21. On the morning of 4 November 2016 the defendant, Mr Siegel and Mr Ellis met up at the Sheepyard Inn Hotel, which was also owned by the defendant. At about 9.30am they headed to the mine. To the defendant’s observation, both Mr Siegel and Mr Ellis appeared to be sober. They commenced work at the mine with the defendant spending some time operating the digger. The defendant left the claim at about lunchtime to attend to some business at one of the hotels. At the time when the defendant left, Mr Siegel was operating the bogger and loading the bucket and Mr Ellis was operating the digger.

22. At about 3.00pm on 4 November 2016 the bucket became stuck at the top of the hoist. Mr Siegel approached Mr Ellis and told him that the bucket was stuck at the top of the hoist. Mr Ellis told Mr Siegel to wait while he went to the surface to investigate. As Mr Ellis went to leave, he heard the sound of the bucket free falling down the shaft. He turned and saw Mr Siegel trying to get out of the sump when he was struck by the bucket. Mr Ellis surmised that Mr Siegel had hit the lower limit switch in the sump and that had cut power to the hoist causing it to free fall down the shaft.

23. It was apparent to Mr Ellis that Mr Siegel was dead and he went to the surface to call for help. He called the Sheepyard Inn Hotel and spoke to the defendant. He then called “000”.

24. The defendant attended immediately with Mr Burden. On their arrival Mr Burden went down the access shaft and confirmed that Mr Siegel was dead.

25. The defendant observed that there was no cable on the cable drum of the hoist and this was unusual and he expected that it would still have some cable wrapped around it.

26. An ambulance arrived followed by the Police.

The Investigation

27. At about 4.25pm on 4 November 2016 Mine Safety Officers Radomir Babic and Janet Town arrived at the mine. They took steps to secure the site and made general observations.

28. On 5 and 6 November 2016 a number of Inspectors from the Mines Investigations Unit arrived at the mine, including, Andrew Tull, Timothy Flowers, Jeremy U’Brien, Matthew U’Brien, Phillip Morton and Stephen Orr.

29. On 6 November 2016 Inspectors Tull and Flowers conducted an interview with Mr Ellis that was recorded and later transcribed (the first interview). In the first interview, Mr Ellis told the Inspectors that the bucket had free fallen down the shaft of the mine, prior to the incident and after it had been installed. Mr Ellis said that a free fall could occur when the cable overspooled and the lower limit switch was tripped. Mr Ellis said that on one occasion he had tripped the lower limit switch with a pole to get the bucket down. Mr Ellis said that Mr Siegel was present on that occasion.

30. On 6 November 2016 Inspector Tull had a conversation with the defendant at the mine. Inspector Orr’s evidence was that the defendant told him that the bucket often got stuck at the top of the hoist when the cable was wound on the drum in the opposite way and that the bucket fell when Mr Siegel hit the lower limit switch, while he was in the sump. The defendant explained that the hoist kept running when the bucket failed to hit the lower limit switch, that the cable drum unspools and winds back on in the opposite direction and that the bucket gets stuck on the lever at the top. Inspector Orr’s evidence was that the defendant told him that when power was lost that the bucket free falls.

31. On 7 November 2016 the Inspectors arranged to observe the hoist in operation and conducted a number of tests that were photographed and video recorded, from both above and below ground. The Inspectors observed the hoist to operate in the malfunction state in which the bucket did not activate the lower limit switch in the sump, the cable wound entirely off the cable drum and then rewound onto it in the opposite direction hauling the bucket back up to the top of the hoist where it stuck against the lever at the top of the hoist with the motor running. MSO Babic then activated the lower limit switch using a pole which shut down power to the motor and the bucket to fell to the bottom of the shaft. This test was repeated and with the same result achieved.

32. On 16 November 2016 Inspector Tull conducted a further interview with Mr Ellis that was recorded and later transcribed (the second interview). In the second interview, Mr Ellis said that the cable would overspool about once per week and if the lower limit switch was hit that the bucket would free fall.

33. On 19 March 2017 the defendant signed a statement prepared by Detective Senior Constable Stephen Hicks, that included the following:

30.   I later realised that what had happened was Mark had spilled some rock in the bottom of the sump. This has caused the bucket to stop short of the ‘limit switch’ which normally signals to the hoist that the bucket has reached the sump. As the switch did not trigger the hoist continued to wind down to the point that the cable completely unspooled and began to wind the wrong way. This caused the bucket to begin going back up to the top of the hoist however the electronics of the hoist were in a state that it was still winding the bucket down.

31.   I was later told by Choppers [Mr Ellis] that Mark had accidentally hit the limit switch in the sump when it was in a state of ‘winding down’. In doing so, a signal was sent to the hoist which caused it to shut down. This caused a free fall of the bucket back down the hoist and into the sump, which is what killed Mark.

32.   It is common knowledge and part of Mining Safety course that you do not enter the sump without first securing the bucket.

33.   The normal procedure for entering the sump to clean it out is that you lift the bucket hydraulically, just enough so that you can get in and you also secure the bucket with a metal bar and chain in case the hydraulics fail.

34.   I later heard from Chris Scully that when he had previously worked with Mark that he had seen him clearing rock from the sump while the bucket was ascending without securing it properly. Choppers also told me that he had seen Mark doing this earlier in the day that he died. Choppers told me that he had a go at Mark about it and told him not to be an idiot.

35.   Over the last few months I have been thinking about how this can be prevented from happening again. I have had a look at a few other hoists and have seen they include a ‘slack wire switch’. This signals to the hoist when the bucket has goes slack and shuts down the system. If my hoist had this system in place the bucket would have shut down after hitting the rock which blocked the bottom limit switch. This is something which I am adding to my hoist now that it has been released by the Mine Safety investigators.

34. On 2 August 2017 Inspector Tull conducted a further interview with Mr Ellis that was recorded and later transcribed (the third interview). In the third interview, Mr Ellis said that the cable would overspool and that “if you hit the wrong button” that the bucket would free fall. Prior to the incident, Mr Siegel had hit a button when the bucket was stuck at the top of the arc and caused the bucket to fall. Mr Ellis said that he warned Mr Siegel that the bucket could fall and to make sure he practised “safety first”. Mr Ellis said that when he told the defendant that the bucket had fallen at the mine after Mr Siegel hit the wrong button that the defendant went red in the face and had a “shot at us”, to the effect that they should be more careful. Mr Ellis said that he participated in a discussion with the defendant and Mr Siegel about making sure the sump was clean to make sure that the lower limit switch was activated by the bucket in the sump.

The Cause of the Incident

35. The prosecutor qualified Dr Tim White, a forensic Mechanical Engineer as an expert to provide an opinion on the cause of the bucket free falling into the shaft. Dr White’s opinion evidence can be summarised as follows.

36. The incident could only have occurred if the cable drum was in overspool.

37. The free fall of the bucket occurred because the counterbalance valve failed to act as a brake on the system because it was a single acting counterbalance valve and only prevented the cable drum from rotating in reverse. However, when the cable drum was in overspool, the weight of the bucket applied a load on the cable drum that caused it to rotate in the forwards direction. When power was cut to the hoist, by Mr Siegel inadvertently activating the lower limit switch, the counterbalance valve failed to counterbalance the weight of the bucket and oil was allowed to flow in the hydraulic system so that the hydraulic motors could freewheel in the forwards direction causing cable to come off the cable drum and permitting the bucket to fall.

38. The incident could have been prevented by the adoption of an engineering control being the installation of either:

1. a dual-acting counterbalance valve,

2. a blocking spool valve, or

3. a slack wire switch.

39. A dual-acting counterbalance valve would have prevented the flow of oil in the hydraulic system in the event that the power was cut, thus preventing (or acting as a brake on) the hydraulic motors from moving in either direction. A dual-acting counterbalance valve is a commonly available component for hydraulic systems and a suitable one was available at a cost of $342 and could be fitted with some refitting of hydraulic hoses for a total cost of about $1500.

40. A blocking spool valve would have prevented the flow of oil in the hydraulic system in either direction when the system is unpowered or in “neutral”. A blocking spool valve is a commonly available component for hydraulic systems and a suitable one was available at a cost of $459 and could be fitted for a straight replacement of the spool valve on the hoist, by detaching and re-fitting the hydraulic hoses.

41. A slack wire switch operates by cutting power to the system when the cable goes slack which is a necessary precondition to the cable going into overspool. Dr White was shown video of a slack wire switch installed on a hoist on the opal fields. The particular switch was rigged up to a bar that was held up by the cable when it was taut. If the cable became slack the bar dropped and the switch was activated to cut power to the hoist. The slack wire switch seen by Dr White was fabricated with commonly available components at a likely cost of less than $1,000.

The Defendant’s Evidence

42. The defendant gave evidence at trial and was cross-examined. The defendant’s evidence can be summarised as follows. I will not repeat matters that I have already referred to that were not in dispute, unless it is necessary to do so.

43. The defendant is presently 47 years of age and resides at Grawin, the closest town to the Grawin Opal Fields. The defendant owns the Glengarry Hilton Hotel and the Sheepyard Inn Hotel at Grawin. At the time of the incident he was in the process of acquiring the Hebel Hotel, located about 65 kms north of Lightning Ridge and just over the Queensland border.

44. Prior to 2016, the defendant understood that Mr Siegel was mining his claim with the assistance of Chris Scully.

45. The defendant moved his mining equipment from the claim in Weewarra to the mine at some time in 2016, quite a few months before the incident. When the equipment was installed, Mr Siegel showed the defendant and the other men where he wanted the hoist set up. Mr Siegel had arranged for a number of holes to be drilled on the mineral claim, including the main shaft, the access shaft and a number of 9 inch holes.

46. Mr Siegel had his own mining equipment at the mine, including the hoist over the access shaft, jack hammers, a rickshaw and lights and electrical leads.

47. Prior to the installation of the hoist over the main shaft, the defendant had advised Mr Siegel to drill the main shaft to approximately 20 feet past the first working level. A “stage” was installed at the height were the bucket was to sit in the sump, but the sump originally extended a further 13 or 14 feet down. The stage was constructed out of a square steel tube and attached to the rungs of the ladder that formed the rails on which the bucket went up and down. The purpose of having a deep sump was two-fold, first to allow the main shaft to be used to access a lower working level of the mine in the future and second, to reduce the need to clean out the sump on a regular basis.

48. When the hoist was being installed over the main shaft, the defendant explained to Mr Sigel how it worked. When the installation was complete, the defendant showed Mr Siegel how to operate the hoist and they spent some time working out teething problems. The defendant also explained some safety issues relating to the hoist.

49. The defendant experienced some issues with the hoist when he first bought it, about eight to 10 years prior to the incident. At that time the sump had dirt in it, and that the bucket had become stuck at the top of the hoist. By the time the defendant had walked a considerable distance to exit his claim through the safety hole and reached the surface, he saw the bucket was creeping back down into the hole. He described it as going slowly back down on the hydraulic pressure. When he examined the hoist, he noticed that the cable was spooled on the wrong way and that the cable had become tangled. There was about 20 to 25 metres of cable on the drum, but he was only using the hoist to a depth of about 12 feet and there was a considerable amount of excess cable. At that point in time the defendant did not understand why the hoist had acted as it did. After sorting out the cable, he went back down into the shaft and operated the hoist again. He then realised that the bucket was not coming into contact with the lower limit switch. The defendant figured out that the cause of the problem was not keeping the sump clean from spillage.

50. The defendant did not experience any further problems with the hoist. The defendant was aware that Mr Siegel changed the rollers on the bucket shortly before the incident.

51. After the hoist was installed at the mine but before the incident, the hoist stopped working. Mr Ellis rang the defendant and told him that the hoist had stopped working in that it would not go up or down. The defendant telephoned Mr Coulthard to go out to see if he could fix it. Mr Coulthard fixed the hoist some time later, after ordering and receiving parts for it.

52. The defendant gave evidence that the shipping container containing the generator was usually locked and that the key for the lock was in Mr Siegel’s possession. There was also a gate on the access shaft that was secured by a chain with a lock. The key for that lock was also in Mr Siegel’s possession. The main shaft was secured by securing the bucket at the top of the shaft with a pipe and a piece of chain. The weight of the bucket held it in place and prevented anyone from accessing the main shaft, without starting the generator and operating the hoist to move the bucket.

53. The defendant thought that Mr Ellis was a safe worker and had no concerns about him using the equipment at the mine. By about 2016 he thought the same of Mr Siegel. The defendant thought Mr Siegel had changed a lot and woken up to himself particularly after his parents moved away from the area.

54. The defendant showed Mr Siegel how to regularly maintain the hoist by greasing the working parts. The defendant told Mr Siegel how to make sure there were no oil leaks before operating the hoist.

55. The defendant had previously contacted a firm, Stevenson’s Hydraulics who were situated in Dubbo in relation to conducting repairs on his road grader after it kept blowing out the same hydraulic hose. As the defendant understood it, that firm only dealt with hoses, fittings and seals and did not supply or repair components of hydraulic systems. The defendant was told that if someone from the firm was to come out to the opal fields that they would charge $80 per hour for labour and $2 per km after the first 50 kms for travel expenses. The defendant estimated that the trip between Grawin and Dubbo would take about 4 hours.

56. The defendant gave evidence that he would not replace hydraulic hoses on the hoist himself but would ask Mr Burden to do it because he was a mechanic. The defendant had some basic understanding of hydraulics and the pressure of a hydraulic system but did not have the expertise to replace the hydraulic components such as a spool valve or a counterbalance valve.

57. The defendant gave evidence that he spoke openly with Inspector Tull and Inspector Orr when they arrived at the mine. He assisted them with their enquiries and showed them how to operate the equipment at the mine.

58. Mr Ellis and Mr Siegel had been working at the mine for probably a period of weeks after the equipment was installed. He did not recall Mr Ellis ever telling him that the bucket had free fallen whilst the hoist was installed at the mine. He did not have any notice of a defect in the hoist from its manufacturer prior to the incident. He received a safety alert relating to that type of hoist in about 2018 after it was issued by the Regulator.

59. Mr Siegel had the equipment to cut and polish any opal that was found and by doing that he increased the value of the product. The defendant estimated that about 20% of the material taken from the mine would be sent to the wash bay to see if it contained any opal. The remaining 80% of the material removed from the mine was taken to a spoil dump nearby.

60. Mr Siegel had a series of 9 inch holes drilled at the mineral claim to see if there was any promising material in the claim and to act as a landmark for the underground mining operation.

61. Mr Siegel did not tell the defendant that the bucket on his hoist had previously fallen down the shaft after it had been installed at the mine.

62. The defendant accepted that the hoist could overspool. In that instance, the cable drum kept winding and the bucket went back up to the top of the hoist where it hit the lever and sat there. If the power was cut, the bucket would creep back down into the shaft. The defendant accepted that the bucket could free fall if the emergency stop button was pressed. The defendant told Mr Siegel that the bucket could fall if the emergency stop button was pressed. He accepted that by what he knew now that the same thing could happen if the lower limit switch was activated. To the defendant’s observation, if the generator was turned off because for example the thermal overload was tripped, then the bucket would slowly creep back down.

63. At the time when the hoist was being used at the mine, the defendant believed that it was one of the better hoists on the opal fields because it had been professionally manufactured as opposed to being “home-made”.

64. In cross-examination, the defendant accepted that the cable could overspool if the lower limit switch was not activated and that in those circumstances the bucket would go back up and jam against the lever. The defendant accepted that the bucket could free fall if the emergency stop button as pressed at that point in time and that had happened to him once before when he first got the hoist.

65. The defendant accepted that the procedure of locking off the sump with a crow bar and chaining the bucket was consistent with what all of the miners knew that it was not safe to enter a shaft underneath a suspended load. The defendant accepted that there was a risk with any hoist that the bucket could fall down the shaft and injure a person in the shaft or in the sump.

66. The defendant did not agree that in his experience the tripping of the thermal overload switch, which would shut down power to the electric motor, would cause the bucket to free fall. In his experience the bucket crept slowly back down in that scenario. The defendant did not agree that he knew that the bucket would free fall if the lower limit switch was activated, immediately after the incident, but accepted that he knew that now.

67. The defendant agreed that he told Mr Siegel not to allow spillage to accumulate in the sump because that would prevent the bucket from activating the lower limit switch.

68. The defendant gave evidence that he had owned a number of hoists whilst he has been an opal miner. He had generally been able to do basic maintenance of those hoists by himself such as changing belts and cables. He accepted he would have obtained help from someone else to fix any problem with the hydraulic system of the hoist.

69. The defendant agreed that his wife had knowledge of the financial details relating to the mine and that she had sent an email to Mrs Gruenefeld based on her knowledge.

70. The defendant accepted that he had told Mr Siegel to avoid an overspool situation because he knew that in that state there was a risk that the bucket could free fall into the sump and that he explained that risk to Mr Siegel.

71. The defendant accepted that he heard about a slack wire switch after the incident and that he had discussed that device with the inspectors. He first heard about a slack wire switch on the day after the incident in discussions with the owner of another hoist. The defendant had not made any modifications to the hoist after the incident. He put it in a paddock until the case was over and the cause of the incident was authoritatively determined.

72. The defendant accepted that a dual acting counterbalance valve and a blocking spool valve could have each been obtained for about the cost of $1,000. He accepted that a slack wire switch could be installed on the hoist for about that cost or possibly lower. The defendant thought the most difficult aspect of making modifications to the hoist was getting a qualified person to diagnose the problem taking into account the remoteness of the opal fields.

73. In re-examination, the defendant gave evidence that he understood that the installation of a slack wire switch on the hoist, replaced the need for the lower limit switch.

Credit

74. The defendant impressed me as a straightforward man and as a witness who was trying to tell the truth. To his credit he made a number of admissions against his own interest. It was clear that he assisted the Inspectors with their enquiries during the investigation and I am satisfied that he told the truth to DSC Hicks. There were some disputes arising from his evidence that could be explained other than by concluding that the defendant was not telling the truth. For example, I think it is more likely that he told the Inspectors and DSC Hicks that activating the lower limit switch could cause the bucket to fall because he concluded that from what occurred in the incident rather than from previous experience of that occurring. Similarly, it is more likely that Mr Ellis told him that the bucket fell at the mine after the hoist was installed because the emergency stop button was pressed, rather than the lower limit switch being activated.

The Elements of the Offence

75. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and to prove it beyond reasonable doubt.

76. Section 32 of the Act 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.

77. The elements of the section 21 offence are:

• Element 1   The defendant was conducting a business or undertaking that involved the management or control of plant at a workplace.

• Element 2   That the defendant owed a health and safety duty to ensure, so far as is reasonably practicable, that the plant was without risk to the health and safety of any person.

• Element 3   The defendant failed to comply with its health and safety duty; and

• Element 4   The failure exposed an individual to a risk of death or serious injury.

78. The elements of the section 25 offence are:

• Element A   The defendant was conducting a business or undertaking that supplied plant to be used at a workplace;

• Element B   That the defendant owed a health and safety duty to ensure, so far as is reasonably practicable, that the plant was without risk to the health and safety of persons who use the plant at a workplace for the purpose for which it was designed or manufactured.

• Element C   The defendant failed to comply with its health and safety duty; and

• Element D   The failure exposed an individual to a risk of death or serious injury.

79. Section 25(4) provides that the supplier must give adequate information to each person to whom the supplier supplies plant concerning each purpose for which the plant was designed or manufactured and any conditions necessary to ensure that the plant is without risk to health and safety when used for a purpose for which it was designed and manufactured.

The Relevant Law

80. “Plant” is defined in s 4 of the Act to include any machinery, equipment, any component of those things and anything fitted to any of those things.

81. A person is a “worker” if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act.

82. A “workplace” is defined in s 8 of the Act to be a place where work is carried out for a business or undertaking and includes a place where a worker goes, or is likely to be at work.

83. The offences are strict liability offences: section 12A of the Act.

84. A “supply” of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent: s 6(1) of the Act. A supply of a thing occurs on the passing of possession of the thing to the person or the agent of the person: s 6(2) of the Act. The definition of supply is inclusive and incorporates the ordinary meaning of the word, “to provide or furnish”.

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

80. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of the duties provided for by the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury.

81. The word “risk” is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].

82. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].

83. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it.

84. Some guidance on the identification of risks and how they can be eliminated or minimised is provided by Part 3.1 Work, Health and Safety Regulation 2011 (the Regulations). Clause 34 of the Regulations provides:

A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety.

91. Clause 35 of the Regulations provides:

A duty holder, in managing risks to health and safety, must--

(a)   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--minimise those risks so far as is reasonably practicable.

92. Clause 36 of the Regulations provides:

(1)   This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2)   A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause.

(3)   The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following--

(a)   substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b)   isolating the hazard from any person exposed to it,

(c)   implementing engineering controls.

(4)   If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5)   If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

Note: A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.

93. “Reasonably practicable” is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including;

1. the likelihood of the risk concerned occurring, and

2. the degree of harm that might result from the risk, and

3. what the defendant knows or ought reasonably to know about;

1. the risk, and

2. ways of eliminating or minimising the risk, and

4. the availability and suitability of ways to eliminate or minimise the risk, and

5. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

94. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity, and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

95. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.

96. The phrase “exposed to risks” contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.

97. The relevant duties require knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].

98. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.

99. The words “reasonably practicable” indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

100. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

101. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].

102. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker’s negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

103. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].

104. One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].

105. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.

106. The question of what is reasonably practicable is also a question of fact, depending on the circumstances of each case. The fact that a worker has carried out work carelessly or omitted to take a precaution does not preclude the duty holder from establishing that everything that was reasonably practicable in the employer’s undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f.

107. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the person being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

108. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

109. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

consideration

Issue 1   Did the defendant have management or control of the hoist installed at the mine?

110. The only outstanding matter for the prosecution to establish in Element 1 of the first offence is encapsulated in issue 1.

111. Section 21 of the Act prescribes a duty on a person conducting a business or undertaking (PCBU) to the extent that the business or undertaking involves the management or control of plant at a workplace.

112. The hoist satisfies the definition of “plant” in s 4 of the Act.

113. The mine satisfies the definition of a “workplace” in s 8 of the Act.

114. The defendant admitted that he was a person conducting an undertaking at the mine and that he was the owner of the hoist.

115. The words “management” and “control” are not defined in the Act. “Control” is a word of wide import and its meaning is determined by the context in which it is used: WorkCover Authority of NSW v Woolworths Ltd [1994] NSWIRComm 207. Control in the present context involves the capacity to direct action or to compel corrective action to ensure safety: McMillan Britton and Kell Pty Ltd v WorkCoverAuthority (NSW) (1999) 89 IR 464 at 480.

116. It was common ground that the defendant allowed the use of the hoist at the mine on that basis that he would have an equal share of the profits of the mining operation conducted at the mine. I am satisfied on the evidence that the defendant retained ownership of the hoist and that he could withdraw it from the mine at any time, if he chose to do so.

117. The hoist was used after it was installed at the mine on a day to day basis to remove mullock from the mine, by Mr Siegel, Mr Ellis and the defendant. It was routinely maintained by Mr Siegel and/or Mr Ellis by the application of grease to the moving parts and the replacement of the wheels that ran on the rails. When it stopped working about four weeks before the incident, Mr Ellis contacted the defendant and he arranged for Mr Coulthard to carry out the necessary repairs.

118. Whilst Mr Ellis and/or Mr Siegel had some management or control of the hoist in its day to day operation, I am satisfied that the defendant also had the management or control of the hoist because he was consulted if major repairs were to be undertaken and that was consistent with him retaining ownership of the hoist. The defendant accepted in cross-examination that if Mr Siegel or Mr Ellis could sort out an issue with the hoist then they would, but otherwise they would come to him to have it fixed.

119. The defendant accepted in cross-examination that he could have had the hoist modified by installing a dual-acting counterbalance valve, a blocking spool valve or a slack wire switch.

120. After the incident, the defendant removed the hoist from the mine and stored it pending the outcome of the proceedings.

121. Taking into account all of the evidence, I am satisfied beyond reasonable doubt that at the time of the incident that the defendant had management or control of the hoist.

122. I am satisfied beyond reasonable doubt that the prosecutor has established Element 1 of the first offence.

Issue 2   Was the defendant a supplier of the hoist at the mine?

123. The only outstanding matter for the prosecution to establish in Element A of the second offence is encapsulated in issue 2.

124. The defendant admitted that he was a person conducting an undertaking at the mine.

125. I am satisfied that the hoist was used at a workplace for the purpose for which it was designed or manufactured.

126. I am satisfied that part of the defendant’s undertaking was that he provided the hoist to be used at the mine by Mr Siegel to further the partnership activities. I am satisfied beyond reasonable doubt that the defendant was a supplier of the hoist in the course of his undertaking conducted at the mine.

127. I am satisfied beyond reasonable doubt that the prosecutor has established Element A of the second offence.

Issue 3    Element 3 and Element C - Did the defendant breach his health and safety duties by failing to take the steps particularised in the Summonses?

128. Element 3 and Element C are common to both charges.

129. The prosecutor is required to demonstrate the particular measures that should have been taken by the defendant to eliminate or minimise the risk identified: Kirk at [37].

130. In order to find Element 3 or Element C established I must be satisfied beyond reasonable doubt that the defendant failed to comply with his health and safety duty by failing to take one or more of the steps set out in the particulars of breach in [12](a)-(c) of the Summonses and that those steps were reasonably practicable.

131. This is a unique case in that each of the pleaded failures required the defendant to implement an engineering control by modifying the hoist in one of the specified ways, to cure a defect in its design.

The pleaded risk

132. The pleaded risk was a risk of death or serious personal injury to a worker at the mine as a result of being hit by the bucket falling down the shaft.

The likelihood of the risk occurring

133. The risk was likely to occur if the sump was not kept clean. In the ordinary course of loading the bucket in the sump, it was likely that spillage would occur and this necessitated the implementation of the procedure to secure the bucket before a person entered the sump to clean it out. If a worker did not exercise care in loading the bucket, it may have been necessary to clean out the sump more than once per day.

The degree of harm

134. The degree of harm that might eventuate was serious. The free fall of the bucket down the shaft was more likely to cause the death of a worker in the sump or shaft than serious personal injury.

The defendant’s knowledge of the risk and the ways of eliminating or minimising the risk

135. It was common ground that it was known on the opal fields that buckets could free fall into shafts and it was well known that a miner should not enter a shaft under a suspended load or even another miner.

Mr Ellis’ Knowledge

136. Mr Ellis gave evidence that he had seen a bucket fall down a shaft at other mines. His evidence to the Court was that he could not recall if it had happened at the mine in the period after the hoist was installed. Mr Ellis’ evidence was that the incident had a significant psychological impact on him. He had increased his alcohol intake and his memory had suffered. He felt harassed and harangued by Inspector Tull to the extent that in the end he told the Inspector what he thought he wanted to hear to get the interviews over with.

137. Mr Ellis’ evidence was contrary to what he told Inspector Tull in the course of his recorded interviews, that I have set out at [29], [32] and [34] above. The relevant parts of each interview were played to Mr Ellis to refresh his memory. He accepted that it was his voice that had been recorded and that during the interviews he was doing his best to tell the truth. After hearing the excerpts, his evidence was that he could not recall the bucket free falling at the mine after the hoist was installed and it was possible that when he spoke to Inspector Tull that he was confused with earlier incidents at other mines.

138. I granted leave to the prosecutor to cross-examine Mr Ellis as an unfavourable witness. It was put to him that he was not doing his best to tell the truth and that he was trying to protect the defendant. He denied both of those propositions.

139. Having regard to all of the evidence, I prefer the version given by Mr Ellis in the course of the recorded interviews. In the interviews, Mr Ellis came across as having a good working knowledge of mining operations and appeared to be co-operative. Whilst I accept that the incident was traumatic for Mr Ellis and that it continues to affect him, I am not satisfied that what he told Inspector Tull in the interviews was unreliable or untrue.

140. In Court, Mr Ellis presented as a poor witness. He denied the truth of what he said in the interviews, whilst maintaining that he did his best to tell the truth at the time of the interviews. His explanations that he was confused or providing answers under duress were unconvincing. I am satisfied that as a witness in Court that he was not doing his best to tell the truth. I am satisfied that what he told Inspector Tull in the recorded interviews that took place closer to the relevant events should be preferred to the evidence that he gave in Court.

141. I am satisfied that Mr Ellis was present with Mr Siegel at the mine when the bucket fell into the shaft after the hoist was installed. I am satisfied that he told the defendant that the bucket had fallen into the shaft at the mine after the hoist was installed, probably because Mr Siegel had pressed the emergency stop button.

The Defendant’s Knowledge

142. The defendant gave evidence that he knew that when the cable overspooled that the bucket could free fall if the emergency stop button was pressed. The defendant accepted by reference to the incident that the bucket could also fall if the lower limit switch was activated.

143. I do not need to decide if the defendant had actual knowledge of the latter prior to the incident for two reasons. First, this involves focussing too narrowly on the actual cause of the incident which can lead to error, and second, it is sufficient that he should have known. As a matter of logic, pressing the emergency stop button and activating the lower limit switch produced the same result, namely cutting the power to the electric motor. Accordingly, it was reasonable to assume that each of those actions could cause the bucket to fall. In the alternative, it was open to the defendant prior to the incident to test which actions resulted in the bucket falling down the shaft. In all of the circumstances, I am satisfied that the defendant should have known that the bucket could fall down the shaft if the cable was in overspool and the power to the electric motor was cut for any reason.

142. The risk was recognised at the mine to the extent that it was required to be controlled. This was sought to be achieved by the implementation of an administrative control requiring the workers to comply with the instruction not to enter the shaft under the bucket unless it was secured just above the sump.

143. The defendant knew that Mr Siegel was a risk taker and had a propensity not to follow instructions and/or to act unsafely. As a result, the defendant should also have known that in overspool the hoist continued to present a risk to the health and safety of the workers using it, but in particular to Mr Siegel. On a wider view, the defendant should have known that a worker experiencing difficulty with the hoist may have pressed the emergency stop button as a reasonable response to the problem, which could have caused the bucket to free fall down the shaft.

144. The pleaded risk could not be eliminated because there was always a risk that the hoist could fail by reason of a catastrophic failure, such as a hydraulic hose blowing out or the cable breaking. However, the pleaded risk could be minimised by eliminating the risk posed by an overspool, by implementing one of the engineering controls relied on by the prosecutor. Clause 36 of the Regulations required the defendant as a duty holder under the Act to consider an engineering control prior to implementing an administrative control to minimise a risk that could not be eliminated.

145. I will now turn to consider each of the pleaded particulars of breach of duty.

146. It should be noted that on the prosecutor’s case that any one of the pleaded measures would have prevented the bucket free falling down the shaft and into the sump, by either cutting the power to the hoist when the bucket was in the sump (the slack wire switch) or by preventing oil flow in the hydraulic system so that the cable drum was braked and could not unwind if power was cut to the hoist (the dual-acting counterbalance valve or the blocking spool valve).

Slack wire switch

12.1   fitting the hoist with a “slack wire switch” which would detect when there was slack in the cable and, of so, trip the switch to cut the operation of the hoist as soon as the bucket reached the lowest extent of its available travel.

149. At least one other hoist on the opal fields was fitted with a slack wire switch that was retro-fitted and manufactured by the owner of the hoist from commonly available materials. The defendant became aware of the slack wire switch within 24 hours of the incident as a result of conversations with other miners about the incident.

150. The evidence was that there was a level of co-operation between the residents of the opal fields as a result of the remoteness of the locality. For example, Mr Coulthard, an electrician, assisted the defendant to repair the hoist without seeking payment for that work and the defendant expected that he could have called on Mr Burden, a qualified mechanic, to perform any work on the hydraulic system that may have been necessary.

151. I am satisfied that if the defendant had made enquiries of other hoist owners on the opal fields as to how to deal with the risk posed by the hoist in overspool, that he would have become aware of the availability and suitability of a slack wire switch to fix the issue.

152. A slack wire switch would have eliminated the hazard presented by an overspool, by cutting the power to the electric motor when the cable went slack and before it could wind onto the cable drum in reverse.

153. A slack wire switch could have been constructed from commonly available materials at a relatively low cost and installed in a short time frame. I am satisfied on the evidence that the required know-how was available to the defendant from other miners and/or residents of the opal fields and that those persons would have provided him with the necessary assistance to install a slack wire switch on the hoist.

154. I am satisfied that the cost of installing a slack wire switch was not grossly disproportionate to the risk.

155. I am satisfied beyond reasonable doubt that the installation of a slack wire switch was a reasonably practicable measure to minimise the pleaded risk.

Dual-acting counterbalance valve and blocking spool valve

12.2   fitting the hoist with a dual-acting counterbalance valve instead of a single-acting valve, which would, in the event that power is cut, brake the cable drum irrespective of which way the cable was wound onto it.

12.3   fitting the hydraulic system of the hoist with a “blocking” spool valve in place of the existing “all ports open” spool valve, which would prevent the hydraulic motors (and therefore the cable drum) being able to rotate in the absence of power to the hoist.

156. These particulars of breach can be conveniently dealt with together.

157. The defendant did not have the appropriate expertise to know that a dual-acting counterbalance valve and/or a blocking spool valve were available or suitable devices to prevent the bucket falling into the shaft. However, that did not alleviate him of the duty to engage a suitably qualified person to diagnose the problem with the hoist and to modify it by replacement of those parts, if that was a reasonably practicable step to take.

158. The defendant’s evidence was that he did ask qualified persons to assist him with maintenance of machinery and vehicles when it was necessary to do so. The defendant accepted that he could have and would have asked Mr Burden to assist him to replace any parts on the hydraulic system of the hoist, if that had become necessary.

159. I am satisfied that the installation of either a dual-acting counterbalance valve or a blocking spool valve would have been effective to prevent the bucket free falling into the shaft if the electrical power to the hoist was cut for any reason.

160. Dr White’s evidence was that the parts could be obtained for $342 and $459 respectively and if the replacement parts were obtained from the same manufacturer as the original part, it was likely that the fittings and fixing holes would be identical and re-fitting them would be a relatively simple exercise using a couple of spanners.

161. The problem raised by the defendant on this aspect of the case was the availability and the cost of obtaining an expert opinion on the opal fields to the effect that the replacement parts would solve the problem. The defendant’s evidence was that it was likely that a suitably qualified person would have to travel from Dubbo to Grawin to diagnose the problem and suggest a solution. The evidence was that a suitably qualified person might charge $1,200 for travel expenses and $80 per hour for labour once they were on site. Assuming that eight hours of labour was necessary, this would add about $2,000 to the costs outlined by Dr White.

162. The defendant’s evidence on this point did not provide a complete picture and it was possible for the defendant to investigate the problem with the hoist by other means, such as sending photographs of the components by email or by looking for a service provider located closer to Grawin at say Coonamble or Walgett. However, there is no onus on the defendant to prove anything.

163. On the assumption that the installation of a dual-acting counterbalance valve or a blocking spool valve would have involved a suitably qualified person to travel to Grawin to diagnose the problem, the total cost of either option would have been in the range of $3,000 to $5,000. Even at the upper end of that range, I am satisfied that the cost of installing a dual-acting counterbalance valve or a blocking spool valve was not grossly disproportionate to the risk, which for the reasons already given included a grave risk of death.

164. I am satisfied beyond reasonable doubt that the installation of a dual-acting counterbalance valve or a blocking spool valve were each a reasonably practicable measure to minimise the pleaded risk.

Conclusion on Element 3 and Element D

165. I am satisfied beyond reasonable doubt that the defendant was in breach of his health and safety duties by failing to take the steps particularised in [12] of the Summonses.

Issue 4   Element 4 and Element D – Did the defendant’s breach of duty expose Mr Siegel to a risk of death or serious injury?

166. The principles relevant to causation are set out at [107] to [109].

167. For the reasons already given, I am satisfied beyond reasonable doubt that the defendant was in breach of his health and safety duties by failing to modify the hoist by either:

1. installing a slack wire switch;

2. replacing the single-acting counterbalance valve with a dual-acting counterbalance valve; or

3. replacing the all ports open spool valve with a blocking spool valve.

168. Unless it was modified in one of these ways, the hoist posed a risk to any person in the mine, including a person using it, that if the power to the hoist was cut in some way and the steel cable was in overspool that the bucket could free fall down the shaft and into the sump.

169. That risk had been identified and was controlled by instructing the workers including Mr Siegel not to enter the sump unless the bucket was secured in the shaft. That control measure was only effective if the workers obeyed the instruction.

170. The duties provided for by ss 21 and 25 of the Act extend to taking all reasonably practicable steps to avoid risks arising from human error, including foolish disregard of personal safety to deliberate non-compliance with safe systems of work. The defendant was required to be proactive in anticipating and controlling risks from the operation of the hoist and this involved anticipating how it would be used by the workers in the mine. Mr Siegel was known to be a risk taker and known to act without proper regard for safety. I am satisfied that it was reasonably foreseeable that a worker at the mine might be in the sump or close to it, at a time when the bucket could fall and that by failing to implement an engineering control that the defendant exposed the workers to a risk of death or serious personal injury.

171. The failure to modify the hoist in one of the identified ways was a cause of Mr Siegel being exposed to a risk of death or serious injury. I am satisfied that the circumstances of the incident were evidence of the pleaded risk.

172. I accept that there were other active causes of the exposure of Mr Siegel to the risk of death or serious personal injury including his own failure to comply with s 28 of the Act by taking reasonable care for his own safety and the failure of Mr Gruenefeld to comply with his obligations under the Act and/or the Work Health and Safety (Mines and Petroleum) Sites Act 2013.

173. Section 16 of the Act provides:

(1)   More than one person can concurrently have the same duty.

(2)   Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3)   If more than one person has a duty for the same matter, each person--

(a)   retains responsibility for the person's duty in relation to the matter, and

(b)   must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

174. By operation of s 16 of the Act, the defendant retained the duty to ensure in so far as was reasonably practicable that the hoist was without risk to the health and safety of any person. His capacity to influence and control the hoist imposed a duty on him to take the steps to modify the hoist that I have found to be reasonably practicable. Mr Siegel and/or Mr Gruenefeld did not have the same capacity to influence or control the hoist, in discharge of their respective duties and accordingly their failures are not strictly relevant to determining if the defendant failed to comply with his health and safety duties by failing to take the particularised measures.

175. I am satisfied beyond reasonable doubt that there was a causal relationship between the defendant’s failures and the pleaded risk to which Mr Siegel was exposed.

176. I am satisfied beyond reasonable doubt that the prosecutor has proved Element 4 and Element D.

Conclusion and Orders

177. The prosecutor brought the charges in the alternative. For the reasons given, I am satisfied beyond reasonable doubt that the prosecutor has established the elements of both charges, but I will only find the defendant guilty of the first charge.

178. The prosecution has proved all of the elements of the first charge beyond reasonable doubt.

179. I find the defendant guilty of the s 32 offence relating to the breach of s 21 of the Act.

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Amendments

07 October 2020 - Format [77]-[79]

Decision last updated: 07 October 2020