Nash v Resource Pacific Pty Ltd (No 3)

[2018] NSWSC 45

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45

Hearing dates:

15-18, 23-26, 29 February; 1-4, 8-11, 14-18, 22-23, 30-31 March; 1, 5-7, 13, 20, 29 April; 5, 17 May; 24, 28 June; 30 August; 2, 13-14, 20, 22, 26 September; 17-19 October; 6-7, 9 December 2016

Date of orders:

02 February 2018

Decision date:

02 February 2018

Jurisdiction:

Common Law

Before:

Walton J

Decision:

I have reached the following conclusions in the matters before the Court:

 

(1) The prosecutor has failed to prove the defendant committed the charged contravention of s 8(2) of the Act with respect to particulars 6, 7, 8, 9 (as to the second particularised measure that the defendant should have insisted on different trucks that had adequate overhead fall protection) and 10 (noting that failures are particularised which correspond to each such particular) in proceeding 2016/00019632.

 

(2) The defendant has proved that it was not reasonably practicable for it to have complied with s 8(2) in the respects particularised in particulars 9 (with respect to the first particularised measure) and 11 (noting that failures were particularised corresponding to each such particular) in proceeding 2016/00019632.

 

(3) The prosecutor has failed to prove that the defendant committed the contravention of s 10(2) of the Act in the respects particularised in proceeding 2016/00019616.

 The defendant is not guilty of the charges brought under ss 8(2) and 10(2) of the Act. The charges are dismissed.

Catchwords:

OCCUPATIONAL HEALTH AND SAFETY – trial – Resource Pacific Pty Ltd prosecuted under s 8(2) and s 10(2) of the Occupational Health and Safety Act 2000 – not guilty pleas – defendant operator of coal mine – transport of reject material from reject bin for disposal – reject material released from hopper situated in bin into trucks – loading cycle involved programmable electronic control system to facilitate correct positioning of truck when load released – truck driver killed when reject material released from bin onto cabin of truck – particulars of respective charges considered – findings of a failure to prove beyond reasonable doubt a contravention or the defendant had proved on the balance of probabilities it was not practicable to comply with the duties under s 8(2) – defendant found not guilty – charges dismissed

Legislation Cited:

Clean Waters Regulations 1972 (NSW)
Coal Mine Health and Safety Act 2002 (NSW)
Coal Mine Health and Safety Regulation 2006 (NSW)
Coal Mines Act 1911 (UK)
Coal Mines Regulation Act 1982 (NSW)
Environmental Offences and Penalties Act 1989 (NSW)
Environmental Offences and Penalties Act 1989 (NSW)
Evidence Act 1995 (NSW)
Health and Safety at Work Act 1974 (Vic)
Health and Safety in Employment Act 1992 (NZ)
Metalliferous Mines General Regulations 1938 (UK)
Mining Act 1992 (NSW)
Mining Act 2002 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Occupational Health and Safety Act 2004 (Vic)
Occupational Health and Safety Regulation 2001 (NSW)
Occupational Safety and Health Act 1984 (WA)
Occupational, Health and Safety Act 1983 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:

Area Concrete Pumping v Inspector Childs (2012) 223 IR 86; [2012] NSWCA 208
Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619
Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14
Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
Chevalley and Another v Industrial Court New South Wales and Others (2011) 82 NSWLR 634; [2011] NSWCA 357
Chevalley v Morrison [2012] HCATrans 31
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Coca Cola Amatil (NSW) Pty Ltd v Pareezer & Ors [2006] NSWCA 45
Dinko Tuna Farmers Pty Ltd v Markos (2007) 98 SASR 96; [2007] SAFC 166
Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43
Drake Personnel Limited trading as Drake Industrial v WorkCover Authority of NSW (Inspector Ch’ng) (1999) 90 IR 432
Edwards v National Coal Board [1949] 1 KB 704
Environmental Protection Authority v Alkem Drums Pty Limited (2000) 121 A Crim R 152; [2000] NSWCCA 416
Genner Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57; [2001] NSWIRComm 267
GPI (General) Pty Ltd v The Industrial Court (NSW) (2011) 207 IR 93; [2011] NSWCA 157
Hammersley Iron Pty Ltd v Robertson (unreported, WASC library No 980573, 2 October 1998)
Haynes v CID Manufacturing Pty Ltd (1994) 60 IR 149
Hunter Quarries Pty Ltd v Morrison; Badior v Morrison [2017] NSWCCA 326
Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55
Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55
Inspector Christensen v Abigroup Contractors Pty Limited and Anor (2013) 238 IR 360; [2013] NSWIRComm 111
John Holland Pty Limited v The Industrial Court of NSW (2010) 202 IR 82; [2010] NSWCA 338
Kennedy-Taylor (NSW) Pty Limited v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 240
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Lucantonio v Kleinert [2009] NSWSC 929
Marshall v Gotham Co Ltd [1954] AC 360
McMartin v The Broken Hill Proprietary Company Ltd (1988) 100 IR 241
Morrison v Chevalley (2010) 198 IR 30; [2010] NSWIRComm 116
Morrison v Coal Operations Australia Ltd (2004) 137 IR 375; [2004] NSWIRComm 239
Morrison v Powercoal Pty Ltd (2004) 137 IR 253; [2004] NSWIRComm 297
Nash v Resource Pacific Pty Ltd (No 2) [2016] NSWIC 8
National Hire Pty Ltd v Howard (2003) 126 IR 240; [2003] NSWIRComm 144
Paric v John Holland (Construction) Pty Limited (1985) 59 ALJR 844; [1985] HCA 58
Plomp v The Queen (1963) 110 CLR 234
Ramsay v Watson (1961) 108 CLR 642
Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) (2002) 115 IR 78; [2002] NSWIRComm 108
Rockdale Beef Pty Ltd v Industrial Court of NSW (2007) 165 IR 7; [2007] NSWCA 128
Shannon v Comalco Aluminium (1986) 19 IR 358
Shepherd v The Queen (1990) 170 CLR 573
Simpson Design Associates Pty Ltd v Industrial Court (NSW) (2011) 214 IR 373; [2011] NSWCA 316
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6
Slogget v Adams (1953) 70 WN (NSW) 206
St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (2007) 162 IR 241; [2007] NSWIRComm 39 State Rail Authority (NSW) v Dawson (1990) 37 IR 110
State Transit Authority (NSW) v Guillarte (2003) 123 IR 237; [2003] NSWIRComm 128
The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198
The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority of New South Wales [2012] NSWCA 150
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94; [2010] NSWCA 252
Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wood v The Queen [2012] NSWCCA 21
Workcover Authority (Inspector Robins) v Ecolab Pty Limited (1999) 90 IR 413; [1999] NSWIRComm 300
WorkCover Authority (NSW) (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447; [2001] NSWIRComm 319
WorkCover Authority (NSW) (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd (2001) 105 IR 81; [2001] NSWIRComm 50
WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366; [2006] NSWIRComm 280
WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80
WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239; [1999] NSWIRComm 453
WorkCover Authority (NSW) v Police Service (NSW) (No 2) (2001) 104 IR 268; [2001] NSWIRComm 90
WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIRComm 316
WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Limited (unreported, CT93/1247-1249, 24 July 1995)
WorkCover (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182; [2001] NSWIRComm 278

Category:

Principal judgment

Parties:

Jennifer Ann Nash (Prosecutor)
Resource Pacific Pty Ltd (Defendant)

Representation:

Counsel:
JV Agius SC with BL Clark and RJ Rankin (Prosecutor)
DA Buchanan SC with ML Shume (Defendant)

  Solicitors:
Crown Solicitors Office (Prosecutor)
Seyfarth Shaw (Defendant)

File Number(s):

2016/00019616; 2016/00019632

Contents

Contents

Judgment

INTRODUCTION

SNAP SHOT OF OWNERSHIP AND OPERATION OF THE MINE

THE STATUTORY SCHEME

PARTIES INVOLVED IN VARIOUS ASPECTS AND TIME PERIODS AT THE MINE

Resource Pacific

Macquarie Generation

Daracon

Coal Management Operations and Processing Pty Ltd

Roche

Demat

Primatec

ZMD Engineering

PKI

McKajj Services Pty Ltd

Hardy Bros Mining and Construction Pty Ltd

BIN 802: PHYSICAL AND CONTROL INFRASTRUCTURE

Diagram of the race and other items attached to the gantry

Physical Infrastructure of Bin 802

The Hopper

The Feeder and the Overflow Chute

The Gantry

The Race

Markings on the asphalt road

Traffic Lights

Control Infrastructure for Bin 802’s Operation

Gate Control Panel

Motor Control Centre

Programmable Logic Controller

Main Control Room

The hydraulic system and the gates

Photoelectric Sensor Cells

The remote controllers and the radio receiver

LOCATION AND ACCESS TO BIN 802

THE OPERATING SYSTEM OF BIN 802

Operation of Bin 802 in manual mode

Operation of Bin 802 in auto mode

Remote Open and Oneshot

Auto Selected is true

Truck in Position is True

Cell lines 1 and 2 Activated

Open gate sequence activated

Summary of the operation of Bin 802 in auto mode

HISTORICAL ASPECTS OF SURFACE OPERATIONS AT MINE

Risk Assessments

General

Connell Hatch

Section 126 and Section 100 Applications

Occupational Health and Safety Systems

History of Development Bin 802 Operating Systems: Upgrading of CHPP and Reject Handling System

Upgrade of CHPP 2004 – 2007

Upgrade of the Reject Handling System: Bin 802

Planning for upgrade of the reject bin

Engagement of Demat

Works completed after contract was let

Commissioning

Pre-commissioning

Dry commissioning

Wet commissioning

Wet commissioning - commissioning with mine trucks

Suspension and subsequent negotiations

Coding Prior to Wet Commissioning

Wet commissioning - commissioning with truck and dogs

Amendments to the PLC

DRIVERS’ PRACTICE RECEIVING LOADS FROM BIN 802 AT TIME OF THE INCIDENT

Procedures for receiving the first load of reject

Practice for receipt of second and third loads of reject

OVERVIEW OF FLAW IN THE AUTO MODE OPERATING SYSTEM OF BIN 802 AT TIME OF INCIDENT

Nature of the Risk to Mr Oldknow

Occlusion of the PE Cell: Scenario 2

Testing by Mr Craddock

Conclusion: Dirty PE Cell 2 Theory

Operation of Bin 802 after Commissioning

Permission granted by Macquarie Generation to operate mine trucks

ELEMENTS OF THE CHARGES AND LEGAL PRINCIPLES

The Section 8(2) Charge

The Section 10(2) Charge

Statutory Defences

The Role of Contractors

CHALLENGE TO VALIDITY OF PARTICULARS AND OUT OF TIME CONTENTIONS

Contentions as to failure of certain particulars

Out of time

THE SECTION 8(2) CHARGE

Particular 6(a) – Failure to ensure software designed to comply with Standards and Failure to obtain certification that software designed to comply with Standards

Preliminary

Part I

Part II: Certification

Conclusion: Particular 6(a)

Particulars 3(a) and 6(b) – Failure to install more sensors

Particulars 3(a) and 6(c) – Failure to ensure software written so system could not latch and chute open if truck was not in correct position

Particular 3(a) and 6(d) – Failure to check and trial to ensure that the system could not latch if driver reversed so cabin was under chute

Particulars 3(b) and 7 – Failure to ensure system for maintenance of the cleanliness of the sensor cells

Particular 3(c) and 8 – Failure to ensure system had additional and independent safety measures such as hard-wired switch forward of chute

Particulars 3(d) and 9 – Failure to ensure trucks had adequate FOPS or insisted on different trucks with adequate FOPS

Cost and Time

Conclusion

Different Trucks

Conclusion

Particulars 4 and 10 – Failure to ensure truck drivers have enough information about how the electrical control system worked to enable them to properly protect their safety and failure to ensure traffic lights were properly described and that the lights were positioned so they could at all times be seen

Traffic Lights

The Statutory Defences

Particulars 5 and 11 – Failure to conduct or commission an adequate risk assessment according to Australian Standards

THE SECTION 10(2) CHARGE

Particular 8 – Defendant should have ensured it was impossible for bin gates to be manually triggered by driver when truck cabin beneath chute

Particular 9 – Defendant should have ensured plant was certified as complying with AS61508, AS62061 & AS4024 by a person with appropriate knowledge & skills before allowing any truck drivers to work with it

Particular 10 – Defendant should have ensured the PLC code was written and sensor arrangement operated so plant would not permit material to be dumped onto truck cabin – particularly taking into account trucks reversing

Particular 11 – Defendant should have installed hard-wired switch or pull chain which could only be used by driver if truck cabin was clear of the chute so that reject could not be unloaded onto cabin

Particular 12 – Defendant should have ensured PLC code written and sensors arranged to take account of fact that trucks had changed from trucks with FOPS to trucks without FOPS and that, if trucks not fopped and bin dumped material when truck cabin below chute, driver could be killed

CONCLUSIONS

APPENDICES

Judgment

INTRODUCTION

1. HIS HONOUR: These proceedings involve a prosecution instituted by Mr Robert William Regan on 15 February 2011, for whom Ms Jennifer Ann Nash (“the prosecutor”) was substituted by order of the Industrial Court of New South Wales on 7 March 2012, against Resource Pacific Pty Ltd (“the defendant”). Investigator Nash is an Investigator for the Department of Trade and Investment, Regional Infrastructure and Services of New South Wales, appointed under s 145(1)(d) of the Coal Mine Health and Safety Act 2002 (NSW) (“CMHS Act”). She is empowered to bring these proceedings under s 106(1)(c) of the Occupational Health and Safety Act 2000 (NSW) (“the OHS Act”) by the operation of s 47B of that Act. The OHS Act, since repealed, continues to have force or effect in relation to these proceedings pursuant to Sch 4 of the Work Health and Safety Act 2011 (NSW).

2. The charges against the defendant are specified in further amended applications for order filed on 11 June 2013. The defendant was charged therein with one breach of s 8(2) and one breach of s 10(2) of the OHS Act. These two breaches were pleaded by the prosecutor as occurring on 18 February 2009 at the defendant’s place of work, the Ravensworth Underground Mine (“the Mine”), near Singleton in New South Wales. The Mine was both a coal workplace within the meaning of the OHS Act and a place of work to which the CMHS Act applied.

3. The prosecutor particularised the risk to health and safety in the s 8(2) charge as follows:

1. On the night shift from 6:00 p.m. 17 February 2009 to 6:00 a.m. 18 February 2009 Mr Oldknow and his fellow workers Noel Fairley, Gary Sales and Geoffrey King were engaged in the conduct of the defendant’s undertaking at the defendant’s place of work when driving trucks under a large loading hopper known as Reject Bin 802 to receive into the trucks and their trailers approximately 30 tonnes of material delivered in three drops from the hopper and to then deliver that material to another location nearby.

2. Mr Oldknow and his fellow workers were at risk of being injured or killed by material falling onto them through the roof of their truck cabin when they were beneath the chute of the hopper.

4. There were some inconsequential differences in how the risk was particularised in the s 10(2) charge. The particulars of each charge do, however, differ. Those differences shall be discussed under the heading dealing with the s 10(2) particulars corresponding to the counterpart s 8(2) particular.

5. The Mine was a large coal mine operation that consisted of three main components:

1. an underground mine where material was extracted from the ground;

2. the Coal Handling and Preparation Plant, which was referred to throughout the proceedings as “the washery”, “the CHPP” and “the CPP” (hereinafter “CHPP”), where the material extracted through mining was washed to separate coal from other undesirable materials (this process will hereafter be referred to as “washing”) which were conveyed as part of a reject handling system; and

3. the Ravensworth Coal Terminal (“RCT”) where the separated coal was loaded for transport by rail.

6. A subsidiary aspect of the CHPP was the Mine’s reject handling system. The reject handling system received and discharged the unwanted by-product that was produced through washing. That by-product was a substance constituted of a mixture of coal and other mineral materials.

7. Two forms of this substance were produced:

1. coarse reject, which had a greater particle size; and

2. fine reject, which had a smaller particle size.

8. Separate channels existed for discharging coarse reject and fine reject. Coarse reject was transported from the CHPP, via a series of two conveyors, to a hopper known as Reject Bin 802 (hereinafter “Bin 802”) located approximately 2 km south-east of the CHPP. Fine reject was pumped by pipe out of the CHPP to a different location for disposal. These proceedings concern the disposal of coarse reject, which was referred to throughout the proceedings as “reject”, or “chitter”. It will hereinafter be referred to as “reject”. (It should be noted, for completeness, that coal reject is defined in s 286A of the Mining Act 2002 (NSW) for the purposes of Pt 14, Div 3A of that Act).

9. Bin 802 was variously described as a “surge bin”, a “mass flow bin” and a “gravity flow bin”, each of which illuminated that Bin 802 held a volume of reject received from the conveyors which, when released by the opening of hydraulic gates (hereafter “the gates”), fell by the force of gravity through a chute situated at the bottom of the bin.

10. The infrastructure of the bin will be discussed in detail later in this judgment. However, by introduction, the following will suffice. The hopper of Bin 802 was housed in a gantry which was raised by steel beams over a section of asphalt road. This arrangement formed a passageway underneath the gantry of Bin 802 through which vehicles could pass in order to collect loads of reject. That passageway was referred to throughout the proceedings as “the bin race” or “the race” (hereinafter “the race”). The race ran approximately east to west from entry to exit of Bin 802 and the steel beams which supported the gantry stood on its northern and southern sides. Low walls were also constructed along the northern and southern sides of the race. Bin 802 was upgraded following the upgrade of the CHPP. The project commenced in 2006 and the bin was commissioned in late July 2007.

11. Drivers would position vehicles in the race for the purpose of receiving loads of reject from the chute of Bin 802. After receiving loads of reject from Bin 802 into their vehicles, drivers would transport the reject they had collected along a haul road to a dump pad located near Ravensworth South Emplacement Area (“the dump pad”). Ravensworth South Emplacement Area was a void several kilometres south of the CHPP where reject was ultimately dumped (hereinafter referred to as “the void”).

12. Bin 802 had an electronic control system which control was effected by a programmable logic controller (“PLC”). Drivers could open the gates and release a single load of reject into their trucks by the pushing of an ‘A’ button on a 27MHz Elsema FMT 302 (NL) remote controller (“remote controller”). The remote controllers were provided to all drivers who received loads of reject into their vehicles. Each remote controller featured an ‘A’ button and a ‘B’ button. Once the ‘A’ button was pressed there would be a delay prior to the opening of the gates. The delay was 5 seconds if the hydraulic power pack (hereafter “power pack”), which powered the opening of the gates, was not already activated (the delay was programmed into the PLC in order to give the power pack enough time to reach pressure prior to the hydraulics solenoid being energised or immediately if the power pack was activated. The power pack would remain activated for 120 seconds after the gates were opened. The gates would then remain open for a period of 2.5 seconds before automatically closing. The hydraulic system was configured to default to close the gates and keep them closed.

8. Thus, when the power pack was inactive and the conditions met for opening the gates of Bin 802, there would be a 5 second delay from the time the ‘A’ button on the remote controller was pressed to the time when the gates of Bin 802 opened.

9. The gates could also be closed prematurely by a driver pressing the ‘B’ button on their remote controller or the pressing of an emergency stop button located at Bin 802’s local control centre. An alternative mode also existed for the opening and closing of Bin 802’s gates from the local control centre (that system will be discussed in further detail below).

10. The outputs or commands given by the PLC were dependent upon the inputs it received (in this case, from sensors in the race) and how the software incorporated within the PLC was programmed by means of coding to respond to those inputs. The PLC application software (code) was variously described in these proceedings as the software logic system and software logic code or the logic of the PLC application software (code) (those expressions will be used interchangeably in this judgment). That program is written using a software package specifically designed to operate with the hardware called firmware – a permanent software installed on the PLC.

11. The primary purpose of that mechanism was to prevent the release of reject from Bin 802 unless a driver was in a safe position to receive a load into their truck and dog trailer.

12. It consisted of:

1. a PLC and the software logic with which it was programmed (which governed the opening and closing of Bin 802’s gates);

2. three pairs of Photoelectric Sensor Cells (“PE Cells”) placed in the race which transmitted signals to the PLC (respectively PE Cell 1, 2 and 3); and

3. the remote controllers which also relayed signals back to the PLC (via a radio receiver).

18. The defendant accepted that, at the date of the charges, it was the operator of the coal mine for the purposes of s 17 of the CMHS Act who had day-to-day control and management of the coal operation consisting of the underground coal mine, albeit under the defendant company’s previous name, Resource Pacific Limited (“RPL”).

19. Pursuant to s 184 of the Evidence Act 1995 (NSW), the defendant filed admissions in relation to both the s 8(2) charge and the s 10(2) charge on 8 February 2016. Those admissions were identical in substance. The admissions included that, on 18 February 2009:

1. Bin 802 was part of the defendant’s place of work

2. The defendant had control of Bin 802.

20. It was further admitted that on 18 February 2009:

3. The alleged risk to health and safety arose in the course of the defendant’s undertaking.

21. The charges followed upon a fatal incident which occurred between 2.00 am and 2.30 am on 18 February 2009 involving Mr David Oldknow.

22. Mr Oldknow, a self-employed truck driver under contract by a company called Daracon Mining Pty Ltd (“Daracon”), was engaged to transport reject from Bin 802 into his truck to the dump pad. The truck he used for that purpose was a “commercial” or “road registered” Kentworth T401 prime mover (“T401”) with a tipping bin capable of carrying loads. Attached to his truck, by an A-frame drawbar, was a Sloane tri-axle trailer which also had a bin capable of carrying loads. This type of trailer was referred to as a “dog trailer” or more simply a “dog”. The combination of a semi-trailer, with its own bin, towing an additional trailer of this type was referred to throughout the proceedings as a “truck and dog” or a “truck and dog combination”. Hereafter this combination shall be referred to as a “truck and dog”, although it may be noted that some dogs used by drivers at Bin 802 were four axle trailers.

23. A detail survey was carried out of Mr Oldknow’s truck and dog on 18 February 2009. The plan of that survey (hereafter the “truck plan”) was Ex 130 in the proceedings, a copy of which is appended to this decision as Appendix 1.

24. The truck plan demonstrated that the total length of Mr Oldknow’s truck and dog was 17.59 m long. That length was comprised of: his truck at 7.85 m long; the A-frame drawbar connecting the truck and dog which was 3.64 m long (this was the gap between the truck and the dog trailer); and, the dog trailer which was 6.1 m long. The top of the exhaust pipe on Mr Oldknow’s truck marked the tallest part of his truck and dog at 3.5 m tall.

25. Both the T401 and the trailer were owned and operated by Mr Oldknow through his company DH and GM Oldknow in partnership with his wife.

26. On Tuesday, 17 February 2009, commencing at about 6.00pm, Mr Oldknow worked the night-shift at the Mine driving his truck and dog hauling reject from Bin 802 to the void. Also working on this shift, were drivers Noel Fairley, Gary Sales and Geoffrey King.

27. At the commencement of the shift, Mr Oldknow completed an inspection of the loading bay under Bin 802 and also supervised the pre-start inspections of all the truck and dogs working on that shift, including the completion of Daracon’s pre-start inspection documents in relation to each vehicle.

28. Although there were intermittent periods of rain throughout the night, it was not raining at the time of the incident.

29. Between the hours of 2.00am and 2.30am on 18 February 2009, Mr Oldknow brought his truck underneath the chute of the bin for the purpose of undertaking the work he was commissioned to perform for Daracon at the Mine. During this time, a load of reject was discharged from Bin 802 onto the cabin of the truck whilst Mr Oldknow was situated in the driver’s seat. The roof of Mr Oldknow’s cabin collapsed under the weight of the reject released. Mr Oldknow sustained fatal crush injuries (hereinafter referred to as “the incident”). There were no witnesses to the incident.

30. Noel Fairley, who was driving his truck and dog between the void and Bin 802 next in sequence to Mr Oldknow, drove towards Bin 802 and observed the lights of Mr Oldknow’s truck past the exit side of the race.

31. Mr Oldknow’s truck was found stationary, approximately 33 m forward of Bin 802’s chute on the exit side of the race, having mounted a dirt embankment. When Noel Fairley approached Mr Oldknow’s vehicle, he made the following observations:

1. the T401 had mounted a bund wall located on the exit side of the loading bay;

2. the cabin roof was gone;

3. Mr Oldknow was in the driver’s seat, he was covered by coal, reject and the roof; and

4. the T401’s engine was running and the engine was revving.

32. During the course of investigations undertaken by Inspector Owen Barry (a Senior Inspector of Electrical Engineering with the Department of Primary Industry (“DPI”)) after the incident, Peter Sherwood, a Transport Supervisor for Daracon, was asked to identify the gear that Mr Oldknow’s truck was in when found. Mr Sherwood was recorded by video stating that the truck had been in fifth gear, a mid-range forward gear, when found.

33. An investigation by the DPI into Mr Oldknow’s death established the weight of the reject that was released on to Mr Oldknow’s truck (that was able to be recovered) to be 9.88 tonnes. That amount was comprised partly by reject which was recovered from the bin of Mr Oldknow’s truck, which weighed 4.44 tonnes. The remaining 5.44 tonnes of reject was recovered from inside Mr Oldknow’s cabin, the bonnet of his truck, the ground beside the truck cabin and the ground underneath the chute of Bin 802. There was no evidence as to when that weighing process occurred, however, it was not undertaken on the day of the incident.

34. A statement of agreed facts became Exhibit 3 in the proceedings (“ASF”). Consistently with the fore mentioned evidence, the ASF stated at [65] that “a load of reject, weighing approximately 10 tonnes, was released from Reject Bin 802 whilst the cabin of his [Mr Oldknow’s] prime-mover was located, in part, below the loading gates of Reject Bin 802.” The ASF also referred to the drop of reject permitted by the operation of conditions of Bin 802, stating at [53] that the first loading position “permitted a single 10 tonne load of reject to be dropped from the bin gates” and that the second and third loading positions “permitted two single 10 tonne loads of reject to be dropped from the bin into each dog”.

35. On examination of Bin 802 and the relevant field equipment, no defects or failures were found in relation to any of the field equipment that impacted, relevantly, on the functioning of the electronic PLC system and the operation of the loading gates at the base of Bin 802.

36. On examination of Mr Oldknow’s truck and dog no relevant defects were found.

37. Mr Oldknow had a background of working in and for the mines. He had a family business which involved excavations and truck haulage. He commenced working at Bin 802 by at least 1 August 2007.

38. Mr Oldknow was known to Daracon and to his fellow drivers as a careful and safety conscious driver/operator. His fellow drivers considered him to be a person who would always follow instructions. Mr Oldknow would complete paperwork and was not a person who would take shortcuts. He was very well respected.

39. After the incident, the defendant was required by the DPI to conduct a Failure Mode and Effects Analysis (“FMEA”). The FMEA was moderated by Marcus Punch and Peter Berkholz. The FMEA was held over three days, from 25 February 2009 to 27 February 2009. Common participants on all three days were: Owen Barry (DPI); Paul Drain (DPI); Ian Clifton (from the defendant); Dave Mellows (Xstrata Coal Pty Ltd (“Xstrata”)); Marcus Punch (Marcus Punch Pty Ltd); Rebecca Hornsby (Sparke Helmore Lawyers); Rod Fox (Xstrata); Mark Winchester (Xstrata); Norm Greedy (Power Kontrol Integration Pty Ltd (“PKI”); David Richardson (Demat); Keith Shaw (CFMEU); Dave Rowan (Daracon); Merv Sweetman (Merv Sweetman Pty Ltd); Gavin Hanrahan (Turnbull Hill Lawyers); Justine Matthews (Hunt & Hunt Lawyers); and also from the defendant: Jeffrey Morton; Kel Hinde; Tony Watson; and Joel Evans.

40. Additional FMEA participants on each day were as follows:

1. On 25 February 2009: Katrina Burrell (NSW Police) and Peter Chorley (PKI);

2. On 26 February 2009: Tony Brian (the defendant); and

3. On 27 February 2009: Katrina Burrell; Peter Chorley and Tony Brian.

41. On 4 March 2009, a simulation of the reject bin occurred using a similar truck to Mr Oldknow’s. This was the first operation of the reject bin following the incident.

42. During this simulation Mr Greg Delaney, a truck driver who had previously driven under contract in the reject haulage operation, drove the truck and dog through the bin race. Mr Delaney overshot the mark where he was to line up his truck with the painted line and had to reverse. This can be seen on the DVD taken on this day. At the time of this occurring, there was no issue taken with the fact that Mr Delaney overshot his mark.

43. Bin 802 operated, as intended, during the simulation testing.

44. Mr George Georgevits, consultant engineer and expert witness in the proceedings, was engaged by the DPI to undertake a review of the software code. Mr Georgevits identified that it took him well over 100 hours to identify an error in the code which was incorporated in the PLC (this will be discussed at length later in this judgment). He was provided with two specific pages of the code which contained the relevant coding which allowed the bin to open on Mr Oldknow’s truck. Mr Georgevits’ reports are significant in these proceedings and consisted of two reports dated 29 June 2011 (Ex 135) and 11 March 2016 (Ex 134) respectively.

45. On 12 March 2009, the DPI conducted simulation testing at the reject bin to identify potential activation of the reject bin.

46. The defendant pleaded not guilty to both charges. The defendant contended that the prosecutor had not proved the charges and specifically had not proved particulars of the defendant’s acts and omissions alleged to have been done in contravention of s 8(2) and s 10(2) of the Act. The defendant raised a statutory defence for each particular of the charge under s 28(a) of the Act.

47. The prosecutor is required to prove that the defendant committed the elements of the offence charged to the Court’s satisfaction beyond reasonable doubt (see s 141(1) of the Evidence Act).

48. The onus is on the defendant to prove any defence it raises under s 28 of the OHS Act. The onus is to the civil standard (see s 141(2) of the Evidence Act).

49. In the course of contesting liability and raising statutory defences, it raised a substantial number of issues which will be the subject of detailed consideration later in this judgment.

50. Those issues were ventilated in a very substantial volume of written submissions from the prosecutor and the defendant as well as oral submission taken over three days. The written submissions consisted of the following:

1. Outline of submissions on liability on behalf of the prosecutor (not including Falling Object Protection Structures (hereinafter “FOPS” – see particular 9 of the s 8(2) charge)) (“the prosecutor’s principal submission”) (98 paragraphs over 42 pages);

2. An outline of supplementary submissions on liability on behalf of the prosecutor (FOPS) (“the prosecutor’s principal FOPS submission”) (98 paragraphs over 42 pages);

3. Closing submissions for the defendant (not including FOPS) (“the defendant’s principal submission”) (1213 paragraphs over 470 pages);

4. Closing submissions for the defendant on FOPS (“the defendant’s principal FOPS submission”) (452 paragraphs over 164 pages);

5. Outline of submissions in reply on liability on behalf of the prosecutor (not including FOPS) (“the prosecutor’s liability reply”) (173 paragraphs over 32 pages);

6. Aide Memoire for defendant’s oral submissions (“the aide memoire submission”) (272 paragraphs over 89 pages);

7. Outline of submissions in reply on FOPS on behalf of the prosecutor (“the prosecutor’s FOPS reply”) (27 paragraphs over 6 pages);

8. Outline of the prosecutor’s submissions in reply to defendant’s oral submissions and “Aide Memoire” (“the prosecutor’s aide memoire submissions”) (95 paragraphs over 19 pages).

51. It might also be noted that the trial proceeded over 50 days and resulted in 216 exhibits (of which the principal exhibit, Ex 4, consisted of a two volume tender bundle comprising of 76 tabs). Some of those exhibits were provisionally marked as being relevant. I have come to the view that the provisionally marked exhibits are relevant upon the basis of the discussion of the particulars of the charges as follows in the balance of this judgment.

52. The consideration of those issues necessarily first requires a detailed distillation of the background to the Mine operations, including the following:

1. History and overview of ownership and operation of the Mine;

2. The relevant statutory scheme operating upon the Mine;

3. The entities operating the Mine before and at the time of the incident;

4. The infrastructure and operation of Bin 802, as part of the reject handling system, at the time of the incident;

5. Historical aspects of the surface operations leading up to the incident;

6. An analysis of flaws in the operating system for Bin 802;

7. In addition some issues, which for convenience will be dealt with at the outset of the judgment. These may be described by two questions: whether an occlusion of the PE Cell 2 in Bin 802 may have contributed to the pleaded risk (“the Dirty PE Cell 2 theory”), and did the risk exist for all truck drivers referred to in the charge or solely Mr Oldknow on 18 February 2009.

SNAP SHOT OF OWNERSHIP AND OPERATION OF THE MINE

53. Bin 802 was built for Elcom Colliery Pty Ltd in about 1983. It was not operational for some time in the 1980’s until about July 2007. From the period 1983 to 2008, the Mine underwent multiple ownership changes and subsequently three name changes: Nardell, Newpac No 1 Mine and Ravensworth Underground Mine.

54. From the period around 1999 until February 2003, the Mine was owned by a company known as “Nardell”. Nardell was owned by a company that had Paul Jury as part of its management. The CHPP at Nardell was operated by Coal Management Operations and Processing Pty Ltd (“CMOP”) established by Mr Peter Braun. Nardell went into receivership in February 2003.

55. The Mine was not operational between February and September 2003.

56. Newpac Pty Ltd (“Newpac”) was established on 3 September 2003 by Mr Jury (with the assistance of others). Newpac purchased what became known as Newpac No 1 Mine (also referred to as “Newpac Colliery”), which was the site that had previously been known as Nardell (and which later became the Mine). CMOP and Newpac entered into an operating contract on 24 February 2004 and a short term coal preparation contract on 1 April 2004.

57. On 13 May 2004, Newpac changed its name to RPL. The name of the site remained unchanged. For the purposes of s 17 of the CMHS Act, RPL was the nominated operator and had day-to-day management and control of the underground coal mine.

58. By 2006, RPL had acquired the underground and surface leases for the operation of the underground mine and the CHPP and associated surface facilities at Newpac No 1 Mine.

59. On 18 February 2008, there was a takeover of RPL by Xstrata (“the takeover”). After that date, the Newpac No 1 Mine became known as the Ravensworth Underground Mine. The name of the RPL was changed to that of the defendant on 30 June 2008.

60. The following is a table summarising the history of operators of the Mine:

Period (approx.)	Operator	Name
1983	Elcom Colliery Pty Ltd	Bin 802 Built (described as not operational between 1980s – 2007).
1999 – 2003	Nardell (established by Paul Jury)	Mine known as “Nardell”
Feb – Sept 2003	Nardell went into voluntary administration	Mine not operational.
3 Sept 2003	Newpac (established by Paul Jury)	“Newpac No 1 Mine” (also referred to as “Newpac Colliery”)
13 May 2004	RPL (established by Paul Jury)	“Newpac No 1 Mine”
18 February 2008	RPL (taken over by Xstrata )	“Ravensworth Underground Mine”
30 June 2008	RPPL	“Ravensworth Underground Mine”

61. The legal status of the defendant during the period 2006 until the date of the incident was correctly outlined by the defendant (including contracting operational roles as follows:

495. The people who took over running Resource Pacific and Newpac No 1 Colliery consequent upon the takeover included people with no previous knowledge of the site. However, by virtue of:

(a) the legal fact that a corporation is an independent legal entity, separate from its members, and

(b) the doctrine of perpetual succession,

the Defendant’s knowledge on the date of the offence charged included knowledge it acquired before the take-over of the company in February 2008 and its change from a public to a proprietary company in June 2008.

496. The Defendant on 18 February 2009 was the same company it had been in 2006-2007. The fact that in 2008 it changed its structure from a public company to a proprietary company and modified its name accordingly and that, before that, its membership had changed, did not affect the legal fact that it was a continuing legal entity in the period 2006-2009 and through to today

497. Part 2B.7 Corporations Act 2001 regulates the changing of type of company. Section 162 allows a company to change its company type. By s 166(1), however, a change of type does not create a new legal entity or affect the company's existing property, rights or obligations.

498. Because of the doctrine that a corporation has a distinct legal personality to that of its members, a change of share ownership (ie, membership) of a corporation has no legal effect on a corporation’s existing property, rights or obligations.

499. The legal status of Resource Pacific should be contrasted with the operational roles that it had at the site before and after the takeover.

Prior to the takeover, Resource Pacific was the operator of the mine with a distinct and separate operator at the [CHPP], namely CMOP. After the takeover and termination of the contract with CMOP, Resource Pacific remained the operator of the mine and, from the termination of CMOP’s contract on 30 March 2008, also was the operator of the [CHPP].

THE STATUTORY SCHEME

62. Before turning to the various entities having a connection to these proceedings, it is important to consider the legislative scheme for work health and safety in coal mines for the relevant period heading to February 2009.

63. The legislative scheme in relation to work health and safety that governed coal mines in the period 2006, to and including February 2009, included the CMHS Act (the historical version applicable at 18 February 2009 is the version for the period 1 September 2008 to 30 June 2010: see also ASF [ex 3], par 13) and the Coal Mine Health and Safety Regulation 2006 (NSW) (“CMHSR”). Pursuant to this legislation, there is a distinction between the roles of a colliery holder and a colliery operator.

64. By s 8 of the CMHS Act, that Act applied to all places of work that are, inter alia, a “colliery holding”.

65. A “colliery holding” has the following definition under the CMHS Act:

means a colliery holding registered in accordance with section 163 of the Mining Act 1992.

66. Section 163 of the Mining Act 1992 (NSW) is relevantly as follows:

163 Colliery holdings

(1) The Secretary is to cause to be kept a register of colliery holdings (referred to in this section as the register) in such form as may be prescribed by the regulations.

(2) The Secretary is to cause to be recorded in the register:

(a) such particulars as are necessary to give effect to a direction given under this section, and

(aa) the name of the colliery holding, and

(ab) the name of the colliery holder, and

(ac) a plan showing the location of the holding, and

(b) such other particulars as may be prescribed by the regulations.

(3) The holder of a mining lease or registered mining sublease that authorises the holder to mine for coal or to carry out ancillary mining activities in connection with the mining of coal must apply to have the mining area or sublease area registered as a colliery holding or recorded on the register as part of an existing colliery holding before commencing mining operations under the lease or sublease.

Maximum penalty: 20 penalty units.

(3A) (Repealed)

(4) A person who is lawfully carrying out ancillary mining activities on land in connection with the mining of coal (and doing so otherwise than as the holder of a mining lease or registered mining sublease) may apply to have the land registered as a colliery holding or recorded on the register as part of an existing colliery holding.

(5) A person may not be recorded as the colliery holder of a colliery holding registered under this section unless the person is the holder of a mining lease or registered mining sublease that is part of the colliery holding.

67. By s 3 of the CMHS Act, a “colliery holder” means:

a person who has the right to mine for coal or to carry out coal mining purposes on any colliery holding.

68. A “coal operation” is defined in s 3 of the CMHS Act as follows:

means a place at which coal is mined that is a place of work to which this Act applies and includes the places that are taken to be part of a coal operation under section 4.

Note. This Act applies to all places of work that are within a colliery holding, a coal exploration site or the subject of a licence to mine coal under the Offshore Minerals Act 1999.

69. An “operator”, “in relation to a coal operation that is a place within a colliery holding”, is defined as:

(a) the colliery holder, if the colliery holder nominated himself, herself or itself as the operator of the coal operation under section 17 and that nomination was not rejected, or

(b) the person nominated by the colliery holder as the operator of the coal operation, and not rejected by the Chief Inspector, under section 17.

70. A “coal preparation plant” was defined as meaning:

land, buildings and works that are, or may be, used for or in connection with:

(a) the treatment of coal to improve it as a marketable product, and

(b) the dispatch of the coal after it has been so treated.

71. Part 4 of the CMHS Act deals with the application of the OHS Act. Sections 11, 12 and 13 provide as follows:

11 Act to be read in conjunction with OH&S Act

This Act is to be read in conjunction with the Occupational Health and Safety Act 2000.

12 Act adds to protection provided by OH&S Act

(1) If a provision of the Occupational Health and Safety Act 2000 or the regulations made under that Act applies to coal operations, that provision continues to apply, and must be observed, in addition to this Act or the regulations made under this Act.

Note. For example, Part 2 of the Occupational Health and Safety Act 2000 imposes duties relating to health, safety and welfare at coal operations. So does Part 5 of this Act. The provisions of this Act apply in addition to those of the OH&S Act and do not remove any OH&S protections, rights or obligations.

(2) Without limiting subsection (1) or any other provision of this Act, the failure by an operator to comply with a provision of this Act or the regulations does not affect any liability of an employer or other person under this Act or the regulations or under the Occupational Health and Safety Act 2000 or the regulations under that Act.

13 OH&S Act prevails

(1) The provisions of the Occupational Health and Safety Act 2000 and the regulations under that Act prevail, to the extent of any inconsistency, over the provisions of both this Act and the regulations under this Act.

Note. For example, if a provision of this Act deals with a certain matter and a provision of the Occupational Health and Safety Act 2000 deals with the same matter and it is impossible to comply with both provisions, then a person must comply with the Occupational Health and Safety Act 2000 and not with this Act. If provisions of both Acts deal with the same matter but it is possible to comply with both provisions, then a person must comply with both Acts.

(2) This section is subject to section 122.

72. At all material times the defendant was the colliery holder in respect of Newpac No 1 Mine which, in 2008, was renamed as the Mine. In accordance with s 17 of the CMHS Act the colliery holder could nominate a person as the employer with day to day control of each coal operation within the colliery holding. The defendant did this with respect to the CHPP by nominating CMOP. The nomination form said that the CHPP operated a number of specified surface facilities, including:

the reject conveyors and the coarse reject and tailings emplacement areas on site and at the Ravensworth South void …

73. Part 5 of the CMHS Act imposed duties relating to health, safety and welfare at coal operations. The duties of colliery holders were set out in Div 1 of Pt 5 while the duties of operators at coal operations were imposed by Div 2. The only duties a colliery holder had under Div 1 were to nominate an operator (s 17(1)) and to provide the operator with health and safety information. In that latter respect, s 18(1) provided:

18 Colliery holder must give operator health and safety information

(1) If a colliery holder nominates a person other than himself, herself or itself as the operator of a coal operation, the colliery holder must provide the person nominated with all information available to the colliery holder that may reasonably be relevant to the development and implementation of a health and safety management system for the coal operation (including any major hazard management plans that form part of that system).

(2) The regulations may prescribe the information that must be provided under this section.

74. By contrast, the duties imposed upon operators were set out over nine separate subdivisions of Div 2. The operator’s occupational health and safety duties included:

1. preparation of a health and safety management system (s 20), management structure (s 37) and management plans (s 35);

2. compliance with the health and safety management system including activities undertaken by contractors (s 22);

3. particular obligations in relation to contractors (s 42);

4. notification to the regulator of reportable incidents (s 110); and

5. review as soon as practicable of any information provided by the colliery holder regarding health and safety (s 12 of the CMHSR).

75. By s 20(4) of the CMHS Act, a successor operator could adopt a health and safety management plan for a mine prepared by a predecessor operator, provided the plan was compliant with that Act and the CMHSR. The provision was in the following terms:

20 Duty of operator to prepare health and safety management system

(4) This section does not require an operator to prepare a mine safety management plan for a mine if:

(a) a previous operator of the mine prepared a plan that complies with this Act and the regulations, and

(b) the plan is adopted by the subsequent operator.

76. Together, the CMHS Act and the CMHSR made detailed provisions for the content of the health and safety management system, the management structure and for the preparation by the operator of a contractor management plan and for the operator ensuring compliance with that plan (Pt 5 Div 2 Subdiv 4).

77. For completeness, I note that a coal workplace is defined in s 4 of the OHS Act as “a place of work to which the [CMHS Act] applies”.

PARTIES INVOLVED IN VARIOUS ASPECTS AND TIME PERIODS AT THE MINE

Resource Pacific

78. Resource Pacific Holdings Limited (“RPHL”) was at the date of the incident and still is a holding company of the defendant. The defendant was and is a wholly owned subsidiary of RPHL and, as noted, was formerly known as RPL.

79. As at the date of the incident, RPHL and the defendant were wholly owned subsidiaries of Xstrata and Marubeni. Xstrata acquired RPHL and RPL in the takeover.

80. The takeover was hostile. As a result of the nature of the takeover, little due diligence was able to be done prior to getting access to the site. As part of the takeover process there was a team of senior personnel brought in to review and assess the business including the site conditions, health and safety management system and standards, equipment and personnel.

81. Once on site it was identified that there were a number of issues that needed to be dealt with to bring the site up to Xstrata standards. David Gibson became the Operations Manager at the underground and David Huthnance was brought in to manage the washery.

82. Prior to the takeover, for the purposes of s 17 of the CMHS Act, RPL was the nominated operator and had day-to-day management and control of the underground coal mine. RPL did not operate the CHPP prior to 31 March 2008. As mentioned, RPL contracted management of all surface works associated with Newpac No 1 Mine to CMOP. CMOP was the nominated operator of the surface facilities at Newpac No 1 Mine, which included operating the CHPP and disposal of reject. CMOP was responsible for safety of the surface works, as they were the operator of the surface works. After the takeover and the termination of CMOP’s management contract (effective from 31 March 2008), the defendant became the nominated operator of the Mine, the washery and the reject handling system, which included coarse reject handling including Bin 802. Between 18 February and 31 March 2008, RPL had limited access to the CHPP and associated works.

Macquarie Generation

83. Although RPL held the mining leases for the underground mining, Macquarie Generation owned parts of the surface land that formed part of the Newpac No 1 Colliery including, relevantly, a haul road that provided access between the void and Bin 802.

84. From 3 January 2006, RPL’s access to the void and other surface areas was governed by an “Access and Compensation Agreement” with Macquarie Generation dated 3 January 2006.

Daracon

85. Daracon was registered on 22 November 2007. It was a large transport services company involved in the mining industry in the Hunter Valley. It employed up to a thousand people and had documented systems as to safe and efficient operations. Part of its transport services included the haulage of materials, such as coal and mining waste, by commercial trucks both on road and off road (i.e. within mine sites). Daracon employed Mr Sherwood and Mr Tim Carey.

86. In about late 2007, Daracon was retained by CMOP on a month to month basis to provide haulage services from Bin 802 to the void. Daracon was so retained from July 2007 until the takeover at the end of February 2008. At this time, Daracon used a combination of employed drivers and independent sub-contractors. The independent sub-contractors included owner/drivers such as Mr Oldknow. The drivers were contracted to haul reject from Bin 802 to the void.

87. Following the takeover, the defendant continued to retain Daracon, on a month to month basis, to haul reject from Bin 802 to the void. As at 18 February 2009, Daracon was using independent transport companies and owner/drivers to perform the works.

Coal Management Operations and Processing Pty Ltd

88. Mr Jury approached Mr Braun, who was experienced in CHPP operations, to set up a company and run the CHPP at Nardell. CMOP was created for the express purpose of being a corporate vehicle for Peter Braun to contract with Nardell (and later RPL) to operate the CHPP.

89. Nardell entered into an operating contract with CMOP to operate the CHPP at Nardell in 2000, with the use of a small transportable coal preparation plant (TCPP).

90. After Nardell went into voluntary administration in February 2003 and the mine ceased operating in 2003 Messrs Jury and Braun then worked on a coal project at Bellambi. Mr Braun was arranging the transportation and washing of coal from the Belpac Colliery.

91. In around 2003-2004, CMOP and Newpac entered into three contracts, which included the following:

1. an Operating Contract on 24 February 2004;

2. a Short Term Coal Preparation Contract on 1 April 2004; and

3. RPL and CMOP entered into a new contract for the operation of the Newpac CHPP on 14 December 2006. The contract recognised, inter alia, that CMOP would be:

1. Appointed as the nominated operator of the CHPP and RCT operations in compliance with Pt 2, Div 1 of the “Operators of Coal Operations, Coal Mine Health and Safety Regulations 2006”.

2. Responsible for all OHS matters on the site, except for any underground operations or activities that remained the responsibility of RPL.

3. Responsible for all costs and expenses of operating and maintaining the CHPP, raw coal and product handling systems, and the management of reject emplacement and tailings emplacement under the direction of RPL. As the defendant submitted, an exception to this was “[r]ejects and tailings disposal costs past bin BN01 discharge onto conveyor RW19 and the discharge of the CHPP tailings pumps PP802 & PP803 respectively, at the point of the pump discharge flange”. This encompassed the costs associated with Bin 802, as it was past Bin 801. As such, RPL was responsible to bear the operating and maintenance expenses associated with Bin 802 and paid for the costs of upgrading Bin 802, including the costs of the contractors retained by CMOP, being Demat EPM Pty Ltd (“Demat”), Primatec Pty Ltd (“Primatec”), ZMD Engineering Pty Limited (“ZMD Engineering”) (discussed below) and Daracon.

4. Responsible for the CHPP and Handling Installations complying with the requirements of any statute, rule, regulation, etc.

5. At its cost, comply with and observe the requirements of any statute, rule, regulation, proclamation, ordinance or by-law, present or future and any notice or order from any government or semi-government authority relating to or affecting the Newpac Coal Preparation Plant (“NCPP”) and the site.

6. Carry out its obligations with the highest regard for the safety of the workers at the NCPP.

92. As the operator of the CHPP and reject handling system, CMOP’s statutory duties covered the day to day management of the CHPP and all the associated coal handling equipment located on the surface at the mine, including the reject handling equipment such as conveyors and reject bins used in the handling of reject from the CHPP.

93. There was an organisational restructure for CMOP effective from 4 June 2007 due, in part, to the merger of the operations of the RCT and CHPP. The structure provided for the following management positions:

1. Kyle Farrelly – General Manager (formerly Operations Supervisor at the RCT and General Manager of the CHPP).

2. Jamie Ramplin – Operations Manager: responsible for the day to day operation of both the CHPP and RCT. He reported to the General Manager. (He formerly worked in electrical roles in various collieries and had certificate level qualifications in electrical engineering and was a qualified electrician).

3. Peter Chorley and David Richardson - Electrical Engineers: they were responsible for electrical maintenance and upgrade of the CHPP and RCT, reporting to the Operations Manager. Whilst David Richardson fulfilled this dual position he remained the principal of Demat and a shareholder of Primatec.

4. Tony Brian - Mechanical Supervisor for the RCT and CHPP.

5. Kevin Nott - Compliance and Training.

6. Karen Bosworth - Safety/Appointments.

94. The defendant was correct to submit the CMOP management team was very experienced in operating CHPP’s.

Roche

95. Roche Mining JR Pty Ltd (“Roche”) was a major independent mining construction company.

Demat

96. Demat was an electrical engineering and project management company specialising in CHPP’s and materials handling in the mining sector. Demat had a long standing relationship providing electrical engineering support to CMOP, which included the TCPP, the upgrade to the washery and general advice to CMOP on electrical engineering related issues.

97. Prior to working on Bin 802, Demat had worked on the electrical design and software for two reject bins in two preparation plants in Queensland, where Primatec had written the software. Demat had been involved in work for approximately 5 or 6 CHPP’s providing services of designing electrical control systems and instrumentations before the refurbishment of the CHPP. The Newlands CHPP project was completed in 2005/2006, with a Rockwell Control Logix PLC, with a value of $750,000. The Millennium CHPP project was also completed in 2005/2006, with a Rockwell Control Logix PLC, with a value of $500,000.

98. Demat had provided technical services for CMOP of monitoring the work being conducted by Roche for the electrical side of the refurbishment of the CHPP. Demat was retained by CMOP to undertake the refurbishment of the electrical control system of Bin 802 because of Demat’s recent experience in Queensland having refurbished a reject bin and they were experts in the area. Demat had subcontracted Primatec in the Queensland work and also as part of the refurbishment of Bin 802. They also had personnel overseeing the project, such as Scott Barnes.

99. CMOP retained Demat pursuant to the letter from David Richardson to Mr Braun dated 27 December 2006, and the Demat Reject Bin Electrical and Controls Scope of Works which is located at Tab 17 of Ex 4 in the proceedings.

100. Demat contracted Primatec to design, write and commission the code and the code logic used to control the functions automated via the electronic control system for Bin 802.

101. Demat also subcontracted on-site supervisory work. This included commissioning of the electronic control system and commissioning of the field equipment deployed as part of Bin 802’s programmable electronic control system to ZMD Engineering.

Primatec

102. Primatec was a company specialising in the design, specification and development of electronic programmable control systems for the automation of electro-mechanical processes in industry, particularly in mining, including CHPP’s. Mr Richardson held a 50 per cent interest in Primatec.

103. Primatec employed Shane Ambrose. Mr Ambrose had worked for Primatec for approximately three and a half years at the time of the incident. He held a degree in Electrical Engineering and was employed as a Senior Systems Engineer. Mr Ambrose had experience in the development of PLC and Supervisory Control and Data Acquisition (“SCADA”) systems for the automation of electro-mechanical processes in industry and, in particular, the automation of processes in washeries. This included the automated handling of raw coal inputs and the automated handling of coal and reject/waste outputs. He had relevant experience in, amongst others, electrical design; automation systems; PLC programming; SCADA systems; site commissioning and project management. At Primatec, he was responsible for software coding of such systems.

102. Primatec had three key staff that it committed to the refurbishment of the Bin 802. These were:

1. Shaun Smith – Project and Commissioning Manager;

2. David Brown – Senior Engineer; and

3. Shane Ambrose.

105. Whilst Primatec did not win the tender separately from Demat, it did perform the work as identified in the scope of work with Demat as the project manager. Primatec assigned the design, specification and development of the code and the code logic for the programmable electronic control system for the refurbished washery reject handling system to Mr Ambrose. The work at Bin 802 was seen by Mr Ambrose as a follow on job from the work Primatec did at the washery.

106. Primatec provided a scope of works to Demat. CMOP stated it had allowed “for a control Logix PLC system that connects back to the new control Logix system that is being implemented by Roche” and that “our software will be developed as per the site standard that we are currently using”.

ZMD Engineering

107. ZMD Engineering was the corporate vehicle used by Scott Barnes to trade as an electrical commissioning engineer. It was an electrical engineering company. Mr Barnes was the sole director and company secretary of ZMD Engineering and performed all of the works subcontracted to that company. The majority of Mr Barnes’ work involved field commissioning of electrical systems.

108. Mr Barnes held an Electrical Engineering Trade Certificate and held himself out as an electrical contractor who was both qualified and experienced to oversee the installation of programmable electronic control systems and related field equipment, including systems and equipment of the kind which were being designed and installed for use at the washery by Demat and, in particular, in relation to Bin 802.

109. Mr Barnes had worked with Demat on projects previously. The work that Scott Barnes was undertaking for Demat relating to Bin 802 followed on from Mr Barnes’ involvement in prior Demat projects, which involved construction management, as a site electrical engineer.

PKI

110. PKI was a company that provided engineering services to heavy industry and mining. Peter Chorley and his wife were directors of PKI. PKI had one additional employee, being Norm Greedy.

111. PKI was initially engaged by Demat. At a later time, CMOP directly contracted PKI to provide electrical engineering services, through Mr Chorley, and mechanical engineering services, through Mr Greedy, to CMOP. PKI were engaged in relation to work at the CHPP and not in relation to work at the mine.

112. The CMOP Electrical Engineering Management Plan dated 28 May 2007 was prepared by Mr Chorley before taking on the role of CMOP’s Electrical Engineer. He conducted an AS3000 audit of the rejects switch room and reject bin.

113. Mr Greedy was engaged through PKI to fulfil the role of statutory mechanical engineer for the CHPP and RCT. At the time that Mr Greedy commenced at the CHPP, Bin 802 was not in operation. Mr Greedy had involvement in the preparation of the Safe Operating Procedure (“SOP”) for Bin 802.

McKajj Services Pty Ltd

114. McKajj Services Pty Ltd (“McKajj”) provided project management and engineering services to the site for a number of different projects. At some time prior to about June 2007, CMOP contracted McKajj to provide site supervision in relation to the development of the emplacement area at the void. They were also involved with the refurbishment of the reject handling system.

115. Nathan Bourne was a qualified engineer who oversaw a number of the projects on behalf of McKajj. Other McKajj staff included Trevor McMillan (for a period of time, after which he worked for CMOP directly) and Michael Haugh.

Hardy Bros Mining and Construction Pty Ltd

116. Before June 2007, Hardy Bros Mining and Construction Pty Ltd (“Hardy Bros”) were engaged by CMOP to carry out construction works within the void. This included transportation of reject from the dump pad to, and within, the void. Brad Hardy was one of the supervisors for Hardy Bros.

BIN 802: PHYSICAL AND CONTROL INFRASTRUCTURE   

Diagram of the race and other items attached to the gantry

117. Appended to this decision at Appendix 2 is a diagram that was one of several diagrams included in Ex 6 in the proceedings. This is a two dimensional diagram of the race and other physical features of the gantry or race and a truck, to the eastern or entry side of the race, prior to entering it. The diagram also includes the labels “sensor Row 1”, “sensor Row 2” and “sensor Row 3” (those labels refer to the position of PE Cells and a reference to traffic lights).

Physical Infrastructure of Bin 802

118. Bin 802 consisted of the following pieces of major infrastructure: the hopper, the feeder, the overflow chute and the gantry.

The Hopper

119. The hopper of Bin 802 was a large metal container capable of holding 500 tonnes of reject. The shape of the hopper can be described in four parts. The top section of the hopper, which comprised approximately a quarter of the hopper’s height, was shaped like a conical cap or hood, narrowest at its top and broadest at its base (hereafter the “hood”). Below the hood was a cylindrical section of the hopper which was also approximately a quarter of the hopper’s total height. The lower half of the hopper was shaped like a cone, widest at the midpoint of Bin 802, where it attached to the cylindrical section before narrowing towards the bottom of the hopper. At the very base of the hopper was its rectangular chute within which the gates were located. The total height of the hopper appears to be 10 m.

120. Attached to the base of the chute was a “sock” that was constructed of rubber similar to the rubber used in conveyer belts (hereafter “the sock”). The sock was a hollow cylinder that extended below the hopper to a height of only 3.64 m above the ground. The sock effectively extended Bin 802’s chute which served to narrow the gap between it and the truck and dogs which passed underneath. Evidence was given that the sock was attached to the chute to limit the spray of reject that occurred when a load of reject was released from the hopper.

The Feeder and the Overflow Chute

121. On top of the hopper’s hood was a device that enabled reject delivered to Bin 802 by CV 804 (the conveyor that transported reject to Bin 802) to enter the hopper (hereafter the “feeder”). CV 804 approached Bin 802 from its northern side and met the feeder near the very top of Bin 802.

122. Attached to Bin 802 below the feeder, but on top of the hopper’s hood, was an overflow chute. The overflow chute ran down the side of the hopper’s hood and away to the southern side of Bin 802 at an angle of approximately 40 degrees to the ground. Its end stood suspended roughly 5 m above a patch of ground several metres to the side of Bin 802.

The Gantry

123. The gantry was a superstructure of steel beams which served to hold the hopper above the ground and create the race underneath the hopper through which vehicles could pass for the purpose of receiving loads of reject.

124. The lower part of the gantry had six vertical steel columns which held aloft a horizontal level so as to create a passageway or tunnel the shape of a rectangular prism underneath the hopper. Three of these columns, between which supporting beams were fixed, were positioned to create a northern side to the race and the other three of these columns, between which supporting beams were also fixed, were positioned to create a southern side to the race. The eastern and western sides were open so as to create an entrance and an exit from the race.

125. The horizontal level stood 5 m above the ground and was created by steel beams that were fixed to the six columns. This level signified the roof of the race. In the middle of the horizontal level was a platform that could be accessed by a staircase that ran up the northern side of the gantry. That platform was referred to as the “mezzanine level” throughout the proceedings. On the mezzanine level were control boxes containing various controls.

126. The hopper was held above the mezzanine level, by multiple steel beams. Its chute, however, extended down through the centre of the mezzanine level into the race.

127. The gantry also extended above the hopper where it provided support for CV 804 and Bin 802’s feeder. CV 804 also had further beams supporting it which were fixed to lower parts of the gantry.

128. The gantry also had two walkways that were positioned at different heights above the mezzanine level. The first walkway was situated just below the cylindrical section of the hopper and almost circled it. The second walkway was situated at the top of Bin 802’s cylindrical section but only skirted the western side of that section. Both of these walkways could be accessed by the staircase that ran up the northern side of the gantry.

The Race

129. The race underneath Bin 802 was approximately 9 m in length which reflected the length of the southern and northern sides of the gantry’s base, however, there was no evidence adduced as to the exact width of the race.

130. Truck and dogs would enter the race from the eastern side end of the race (hereinafter the “entrance” or “entry”) and exit it from the western side (hereinafter the “exit”). That movement accorded with the direction that truck and dogs would travel around the loop road. Thus, for drivers using the race from east to west, the southern side of the race was the left hand side of the race and the northern side of the race was the right side of the race (the driver cabin being on the northern side of the race).

131. Low steel walls ran along both the northern (right) and southern (left) sides of the race. A vertical white line was painted on the steel wall on the northern side of the race (hereafter the “wall line”). The wall line was situated about 1.5 m from the exit of the race and was painted from the ground to a height of approximately 1.5 m high. The wall line was variously used by drivers to position their vehicles for the receipt of the first load of reject into their truck bins.

132. There were two large mirrors located in the race. These mirrors were both circular in shape with convex faces (these were referred to in proceedings as “bubble mirrors”). The first mirror was situated 3.67 m above the ground on the north-eastern side of the entry of the race. That mirror faced the bottom of the sock/chute located in the centre of the race. The second mirror was situated in the middle of the race on the northern side and was raised 3.92 m above the ground. This mirror was adjacent to the chute/sock and was also angled so as to face the bottom of the chute/sock. These mirrors existed to assist drivers in positioning their truck and dogs in position to receive loads of reject.

133. Located near the exit of the race, on the southern side, was a digital display that indicated, as a percentage, the amount of reject held in the hopper (hereafter the “indicator level”). The indicator level signalled this because if the hopper was at less than 15% capacity, loads were not to be received from it.

Markings on the asphalt road

134. The asphalt road that paved the race extended to either side of the race and formed part of the loop road.

135. Painted on the asphalt road, to the exit side of the bin, were two sets of parallel lines, marked perpendicular to the road and the race. The first set of lines was painted around 7.5 m from the exit of the race. The second set of lines were grouped around 10 m from the exit of the race. These lines had been painted on the road by various drivers and were different colours. An orange traffic cone hat sat adjacent to each set of lines on a grassy berm just to the northern side of the roadway. The first line marks were used by drivers to align the cabin of their trucks in order to receive the second drop (the first drop into the dog). The second marking was used by drivers to align the cabin of their trucks in order to receive the third drop. The alignment assisted drivers to position the load in the tray of the truck.

Traffic Lights

136. There were two sets of traffic lights situated in the race facing its entrance. The first set of traffic lights (hereafter the “entrance traffic lights”) was attached to the column on the south-eastern corner of the gantry’s base, at a height of 3.55 m above the ground. That first set of traffic lights consisted of only two lights: a red light at the top and a green light below it. The second set of traffic lights (hereafter the “exit traffic lights”) was situated on the south-western side of the gantry frame at the exit of the gantry. It was situated approximately 3.33 m above the ground and consisted of three vertically situated lights: a red light at the top, an orange light in the middle and a green light on the bottom.

Operation of the entry traffic lights

137. Evidence was received that there were three situations in which Bin 802’s entry lights would indicate red to signal drivers not to enter the bin race. The first situation was when Bin 802 was holding less than 15% of capacity. The entry traffic lights were programmed to indicate red in this situation because there were problems with the flow of reject out of the hopper when it was below 15% full.

138. The second situation in which the entry lights were also programmed to show red was when gates were being operated in field mode (that is, operator selector switch set to manual).

139. The third situation in which the entry lights would display red was when there was no power supply to the PE Cells in the bin race.

Operation of the exit traffic lights

140. Mr Ambrose gave further evidence as to how the exit traffic lights were programmed to function. He stated that the entry and exit lights would show green indicating that a truck can drive through when the race was empty. When the truck passed through cell line 1, the exit lights would show green and amber. When the truck passed cell line 2, breaking lines 1 and 2, the exit lights would show amber alone. When the truck reached cell line 3, that is when it was breaking all three cell lines, the exit traffic light would go to red indicating to the driver to stop in that position and take the first load. Thus, the traffic light at the bin operated such that if a truck was in position to receive the first load, the exit traffic light would display red. This would happen irrespective of whether the truck had travelled forward and then reversed or, if it had only travelled forward. (The traffic lights operated independently of the logic in the PLC software.) After that first load was received (i.e. the remote was operated and the gates opened and then closed) the exit traffic light would turn green, indicating that the driver could then move forward through the race and position his dog trailer underneath the chute of the bin to receive the second and third loads. It was Mr Ambrose’s evidence that the only condition upon which the exit traffic lights would show red alone was when all three cell lines were blocked.

141. Evidence as to the operation of Bin 802’s traffic lights was also received in the form of a series of results sheets that documented the results of tests on 12 May. The tests undertaken on that day assessed the response of the exit traffic lights during 7 different scenarios. Tests 1 and 5 tested the operation of the exit traffic lights, amongst other aspects of Bin 802, throughout the following:

1. a truck and dog entered a previously empty bin race from the entry (eastern) side of the race;

2. the cell lines were sequentially broken as the truck drove forward;

3. the truck stopped in position so that the bin of the truck was directly under the chute of Bin 802 (as if taking a first load). At this point all three cell lines were broken;

4. in that position, the A button on the remote was activated;

5. the truck and dog then continued to move forward through the race until the dog trailer was positioned underneath the chute of the bin for the receipt of the second load;

6. whilst stationary in that position, the A button on the remote was activated;

7. the truck and dog then moved forward as to position the bin of the dog trailer for the receipt of the second load;

8. whilst stationary in that position, the A button on the remote was activated with a single press; and

9. the truck and dog then exited the bin race driving forward.

142. The results of this particular test indicated that the exit lights operated as described by Mr Ambrose. That was: the exit light was green whilst there was no truck present in the Bin race; the exit light showed amber and green when the truck blocked the cell line 1; the exit light showed amber when the truck blocked cell lines 1 and 2; the exit light showed red when all three cell lines were blocked by the truck; the exit light showed green after the A button on the remote control had been activated whilst the truck was in a stationary position blocking all three cell lines.

143. However, the results of the testing did indicate that there were some other situations where the exit traffic light would show red alone. The exit traffic light did not show red alone in circumstances where cell lines 1 and 2 were broken regardless of whether TIP was latched or not. Rather, the results indicated that when cell lines 1 and 2, but not 3, were broken and TIP was not activated then the exit traffic lights would show orange alone. If cell lines 1 and 2, but not 3, were activated and TIP was latched, the traffic lights would show red and orange at the same time.

Control Infrastructure for Bin 802’s Operation

144. There were many components to Bin 802’s operating system. These elements will be discussed here and their operation will be discussed later.

Gate Control Panel

145. Within the bin race there was a control panel labelled “NEWPAC CHPP REJECTS BIN GATE CONTROL PANEL CP802” (hereafter the “gate control panel”). The gate control panel consisted of three buttons, a switch and an indicator light.

146. At the top of the gate control panel was a round red button with the words “GATE CLOSED EMERGENCY STOP” written above it (hereafter “emergency close button”). The emergency close button could be used to close the gates immediately if they were open. That button was hardwired directly to the power source of Bin 802 such that activation ceased power to the motor operating the gates and caused them to close without any command by the PLC.

147. Below that button was the “OPERATOR SELECTOR” switch (hereinafter “the OS switch”). That switch could which be selected to either “Manual” or “AUTO” which reflected two different modes by which the gates of Bin 802 could be operated (hereinafter “manual mode” and “auto mode” respectively).

148. Below the OS Switch were two buttons. A red button to the left with the words “CLOSE GATE” written above it (hereafter the “close gate button”) and a green button to the right with the words “OPEN GATE” written above it (hereinafter the “open gate button”). If the OS switch was selected to manual mode, the open gate button could be used to open the gates of Bin 802 (if certain conditions were met). If the OS Switch was selected to auto mode, the operation of Bin 802’s gates operated according to the operation of the PLC programming which governed the operation of Bin 802 in auto mode (the auto mode will be discussed below as it is that mode of operation that was in use at the time of the incident).

149. Below the close gate and open gate buttons was a green indicator light with the words “TRUCK IN POSITION INDICATOR” written above it (hereafter “truck in position light”). The truck in position light would illuminate in a certain situations which are discussed below.

Motor Control Centre

150. Located on the Mezzanine level of Bin 802 was the motor control centre. The motor control centre was a cabinet which contained various control infrastructure involved in the operation of Bin 802. Inside, on its right hand side, was the PLC, which, as earlier noted, governed the operation of Bin 802 in auto mode. The motor control facility also contained the controls for the hydraulic pump and the hydraulic pump isolator facility. The hydraulic pump isolator facility had a switch that could be set to either prevent or enable the hydraulic pump from receiving power.

1. As earlier noted, Mr Punch considered that undertaking such a broad based risk assessment was impracticable.

2. Overall, I consider the defendant has proved that the fact the risk as particularised was uncontrolled was not reasonably foreseeable and further, in the context of this particular, it was not reasonably foreseeable that Mr Oldknow would be exposed to risk to his safety on 18 February 2009

838. The defendant has made good a statutory defence under s 28(a) of the Act with respect to this particular. The defendant has proved, on the balance of probabilities, that it was not reasonably practicable for it to comply with the duty imposed by s 8(2) of the Act.

839. The defendant is not guilty of the s 8(2) charge so far as particulars 5 and 11 are concerned.

THE SECTION 10(2) CHARGE

840. Given the nature of the particulars of this charge, it is important to note at the outset my conclusions as to the latent flaw in the logic of the PLC software which controlled the operation of Bin 802 operated; the narrowness of the window of a truck driver being exposed to the particularised risk deriving from that flaw; the rejection of the prosecutor’s dirty PE Cell 2 theory; and, the determination that Messrs Fairley, Sales and King were not exposed to risk on 18 February 2009 in consequence of the flawed logic in the PLC application software are applicable with respect to the present charges. I will apply them to my findings with respect to the particulars of the s 10 charge in terms.

Particular 8 – Defendant should have ensured it was impossible for bin gates to be manually triggered by driver when truck cabin beneath chute

841. The terms of this particular were as follows:

The defendant should have ensured that the system for delivery of material provided for additional and independent safety measures preventing the Reject Bin being opened if the truck cabin was beneath it, such as hard-wired switches only accessible by a driver after his truck was past the delivery chute of the hopper.

842. The defendant received further and better particulars by correspondence from the prosecutor dated 13 February 2013.

843. I agree with the submission of the defendant that, by these further and better particulars, the prosecutor has simply repeated the contents of particulars 10 and 11 of the s 10 charge and that it was appropriate in those circumstances for the defendant to direct its submissions to those particulars rather than to particular 8. In any event, I consider that the defendant cannot be found guilty of contravening s 10(2) by reason of content of the allegation in particular 8 because the defendant cannot be convicted of something which is not an act or omission to take a specified measure. The Act does not authorise the conviction of a person who controlled plant simply because they failed to ensure there was no risk or that a pleaded risk was not controlled.

844. The defendant is not guilty of the s 10(2) charge so far as particular 8 is concerned.

Particular 9 – Defendant should have ensured plant was certified as complying with AS61508, AS62061 & AS4024 by a person with appropriate knowledge & skills before allowing any truck drivers to work with it

845. The terms of this particular were as follows:

The defendant should have ensured that the plant was certified as complying with Australian Standards AS61508, AS62061 and AS4024, by a person with appropriate knowledge and skills, before allowing any truck drivers to work with it. By “certified” the prosecutor means a review, examination, audit or assessment of compliance with those standards.

846. Despite the development of submissions by the defendant in this respect, in substance, this charge replicates the charge brought with respect to particular 6(a) of the s 8(2) charge. It is true that the particular refers to “plant” rather than the “software logic system”. However, as the defendant acknowledged, the evidence, in this respect, was largely confined to the software logic system, specifically the application software in the PLC for the bin. This means that the question of proof of the charge in respect of this particular and any defence under s 28(a) of the Act are common with the earlier findings of the Court with respect to particular 6(a). In reality, the proof of the particular is to be determined by reference to that part of the plant which had a compromised software logic system rather than other safety related parts of the bin.

847. Whilst the defendant did develop submissions on this question they appear to merely repeat, albeit in a different context, the submissions which were made in relation to particular 6(a) of the s 8(2) charge. In any event, the prosecutor effectively repeated her submissions with respect to this charge.

848. In the result, I have determined for the reasons given with respect to particular 6(a) of the s 8(2) charge that the defendant is not guilty so far as concerns the allegations in particular 9 of the s 10(2) charge.

Particular 10 – Defendant should have ensured the PLC code was written and sensor arrangement operated so plant would not permit material to be dumped onto truck cabin – particularly taking into account trucks reversing

849. The terms of this particular were as follows:

The defendant should have ensured that the software logic code was written and the sensor cell arrangement operated in such a way that the plant would not operate so as to permit the Reject Bin to dump material onto the cabin of the truck as opposed into (sic) the tray or trailers of the truck. In particular the electronic system should have been designed and written to take account of the possibility that a driver of a truck would drive through the race and engage the third photoelectric light or sensor cell and then reverse under the Reject Bin chute so that the chute was positioned above the cabin of the truck, rather than over the tray or a trailer of the truck.

850. The prosecutor relied, in respect of this particular, on its submissions at [53]-[55] of the prosecutor’s principal submission. Those paragraphs relate to submissions made with respect to particulars 3(a) and 6 of the s 8(2) charge, which the prosecutor described as the “unsafe system of work” charge. Particular reference is made to submissions concerning particular 6(b), 6(c) and 6(d). Plainly the substance of the charge bares a close resemblance to the substance of particular 6(c) of the s 8(2) charge. I agree with the defendant that no special significance should be attached to the addition in particular 10 of the words “and the sensor cell arrangement”. The bulk of the prosecutor’s submissions were that, putting aside the PE Cell 2 theory, the charges were predicated upon the fact that a risk existed on 18 February 2009 because of the way the PLC application software was coded.

851. Having regard to the approach of the parties to this particular, I consider that the conclusions that should be reached are the same as those which have been reached by the Court with respect to particulars 6, namely, 6(b), 6(c) and 6(d) of the s 8(2) charge. For the reasons there given, the defendant is not guilty of the charge so far as it concerns particular 10 of the s 10(2) charge.

Particular 11 – Defendant should have installed hard-wired switch or pull chain which could only be used by driver if truck cabin was clear of the chute so that reject could not be unloaded onto cabin

852. The terms of this particular were as follows:

The defendant should have installed a simple mechanical safety system such as a hard wired switch or pull chain, which could only be used by the driver if the truck was in the correct position under the chute and if the cabin was clear of the chute of the Reject Bin, so that the material in the hopper could not be unloaded onto the cabin.

853. The prosecutor submitted that particular 11 of the s 10(2) charge was in substance the same as particular 8 of the s 8(2) charge.

854. Nonetheless, I consider that there are material differences as described in the defendant’s principal submissions below:

1161. Particular 11 is different from particular 8 in the s 8(2) charge. The material differences are:

(a) in this instance the omission alleged extends not only to the absence of a hard-wired switch but also to the absence from the plant of a pull chain to be operated by the driver;

(b) particular 8 in the s 8(2) charge pleaded that the hard-wired switch would be an:

additional and independent safety (measure) preventing the Reject Bin being opened if the truck cabin was beneath it” (emphasis added),

whereas particular 11 of the s 10(2) charge makes no such distinction;

(c) because particular 8 in the s 8(2) charge had to be read in the context of particular 3(c), it was clear that, by “additional and independent”, particular 8 meant “additional and independent of the reliance upon correct positioning of the trucks in accordance with the sensor cells”.

1162. Those second and third differences mean that, in particular 11, it is not clear:

(a) whether the nominated hard-wired switch or pull chain would:

(i) operate in substitution for the electronic system for detecting the position of trucks, or

(ii) operate in addition to the electronic system for detecting the position of trucks, with the final input into the PLC being operation of a hard-wired switch or pull chain, or

(b) that the plant would be operated without any PLC controlling its gate operations at all, the bin gates being opened by the hard-wired switch or pull chain.

1163. The Prosecutor’s use in pleading particular 11 of the expression “a simple mechanical safety system” to describe a system operated by a hard-wired switch or pull chain located past the bin chute suggests she does not mean option (a)(ii) above. An electronic system is not a simple mechanical system.

855. In my view, there is no evidence proving beyond reasonable doubt that s 10(2) imposed a duty to install a hardwired switch or pull chain located beyond the bin chute. There is no evidence that a hardwired switch or pull chain located beyond the bin chute would have eliminated or minimised the risk to which Mr Oldknow was exposed on 18 February 2009. The prosecutor has failed to prove that the particularised omission caused a detriment to safety.

856. Additionally, I consider that for the reasons given in relation to particular 8 of the s 8(2) charge the prosecutor has failed to make out this particular of the charge.

857. If called upon to consider the defence I would conclude that the defendant has established a statutory defence with respect to particular 11 of the s 10 charge. That conclusion is primarily derived from the evidence which demonstrated:

1. The introduction of pull chains was not a safe system of work due to the variety of trucks and trailers which needed to be positioned within the race to align themselves with the drops into the trailer. The greater the number of pull chains or hardwired switches to achieve this outcome, the greater the potential for error. In other words, I consider the pull chains were unsafe.

2. As for a hardwired switch comprising a part of a pendant, a driver would need to reach out of the cabin for the pull chain. If the truck was not close enough he would potentially open the door and lean out of the truck, risking falling or injuring himself or potentially being struck by falling material.

858. The defendant is not guilty so far as particular 11 of the s 10 charge is concerned.

Particular 12 – Defendant should have ensured PLC code written and sensors arranged to take account of fact that trucks had changed from trucks with FOPS to trucks without FOPS and that, if trucks not fopped and bin dumped material when truck cabin below chute, driver could be killed

859. The terms of this particular were as follows:

The defendant should have ensured that the software logic code was written and the sensor cell arrangement operated to take account of the fact that the trucks being used by the drivers had changed from trucks with overhead FOPS protection to trucks with no overhead FOPS protection and that in that case a situation where the chute dumped material when the truck cabin was beneath the chute would have the potential to be fatal for the driver.

860. At the outset of the defendant’s principal submissions an analysis of particular 12 is conducted in some detail. In reply, the prosecutor criticised this approach as being “a dissection of the wording of this particular the sole purpose of which appears to be to distort its plain meaning by focusing on a narrow concept of the word ‘used by driver’”. The prosecutor submitted that a fair and sensible reading of the particular is that it is predicated upon the fact that the PLC code was originally written with semi-tipper trucks in mind; such trucks having FOPS. It was also submitted that, as earlier discussed in this judgment, the alteration to the PLC code to allow for truck and dogs was concerned with difficulties posed by the different geometry of trucks and dogs. Ultimately, it was submitted that the very fact that the code was amended to accommodate truck and dogs was evidence of the fact that there was a change in the type of truck used.

861. I accept the defendant’s submission.

862. Particular 12 is not a reproduction of the allegation in particular 9 of the s 8(2) charge that the defendant had a duty to ensure that the trucks which used Bin 802 had FOPS installed. The operative part of particular 12 is, in fact, similar to the substance of the allegations in:

1. the first sentence of particular 10 of this charge, and

2. particular 6(c) of the s 8(2) charge.

863. The difference is that particular 12 of this charge depends for its force upon the accuracy of two asserted facts.

864. Taken as a whole, however, particular 12 is an allegation that the defendant should have ensured that:

1. the software logic code was written, and

2. the sensor cell arrangement operated

to take account of two asserted facts.

865. The second part of particular 12 comprises two factual assertions:

1. the fact that the trucks being used by the drivers had changed from trucks with overhead FOPS protection to trucks with no overhead FOPS protection; and

2. in that case a situation where the chute dumped material when the truck cabin was beneath the chute would have the potential to be fatal for the driver.

866. The other part of particular 12 is the allegation that s 10(2) imposed a duty: “to ensure the software logic code was written and the sensor cell arrangement operated to take account of” the two asserted facts.

867. It follows that the alleged duty depends, therefore, on the accuracy of the two asserted facts.

868. Putting aside the question of causation, what the prosecutor was, therefore, required to prove with respect to this particular was:

1. The particular is of a failure, by an act or omission, to take or implement a specified measure and the taking or implementing of that measure would have ensured Mr OIdknow’s safety on 18 February 2009 in the sense that the measure eliminated or minimised the risk;

2. The existence of the asserted facts (where the alleged duty to take or implement a measure depends on the prior existence of facts, the prosecutor assumes the burden of proving the same).

869. In my view, the reference to “drivers” in particular 12 is a reference to the drivers alleged to have been at risk on the date of the offence.

870. Particular 3 provides that Mr Oldknow and his fellow nominated drivers were engaged in “the work of driving trucks under Reject Bin 802 to receive into the trucks and their trailers approximately 30 tonnes of material…”. In the immediately preceding paragraph the prosecutor adopts a shorthand which is obviously referrable to particular 3. Reference is made to “the trucks and their trailers” and at the close of particulars “the truck drivers”. In the description of “plant” in particular 5 that expression is further shortened to “the drivers”. Particular 6 refers to the risk. The particular is opened by the words “Mr Oldknow and his fellow drivers”. The description of the failures of the defendant which then immediately follows in paragraph 7 reverts to the words “the drivers” in particular 7(a). Allowing for the need for some grammatical differences, that approach is continued consistently to particular 12. It follows, therefore, that the use of the words “the drivers” is a reference to the drivers referred to in particular 3 and that approach is entirely consistent with the reading of any instrument by reading it as a whole.

871. On that basis alone the particular must fail because the evidence in the proceedings is clear, namely, that the trucks used by the driver never changed from being trucks with FOPS to being trucks without FOPS. As the defendant put it “at all times the trucks driven by the drivers were trucks which did not have FOPS”.

872. There is a further consideration, irrespective of who drove the trucks. As earlier found, notwithstanding clarification during commissioning that the bin would be operated by “normal road trucks” rather than mine trucks, on 4 July 2007 a mine truck was used during the commissioning process. It is also likely that by 4 July 2007 the PLC for the bin had been coded for use by mine trucks and that the code was changed on that date to accommodate a different geometry of a mine truck. It was earlier noted that Mr Barnes thought that in all likelihood the vehicle referred to as “alternative vehicle” in the notation he made about the code being altered on 4 July 2007 was a mine truck.

873. The prosecutor submitted that the evidence indicates that those who were retained to write the code believed the trucks to be used were mine trucks with built in FOPS protection, whereas the trucks that were actually used were road registered trucks without FOPS fitted. It was added that mine trucks were safer than road trucks.

874. There was no evidence that those who were retained to write the code, namely, Mr Ambrose, held a belief of the kind contended for by the prosecutor. Nor, as earlier discussed in this judgment, was there evidence to support the submission that the mine trucks were safer. If the lip of the tipper bin of a mine truck was a FOPS, as earlier discussed, it may be presumed it was built to the standard for a FOPS which the evidence disclosed would have been inadequate to protect the occupant of a cabin from the impact of a drop of 10 tonnes of reject. Ultimately there is no evidence that the flaw in the software logic system was due to a belief on the part of Demat, Primatec or Mr Ambrose that the trucks to be used had built in FOPS protection.

875. Some other submissions were made by the prosecutor in relation to particular 12. These should be seen in the context of the oral submissions made by senior counsel for the prosecutor which describe the role of the allegation as no more than a “make weight” in relation to earlier pleadings relating to ensuring that the software logic code and sensor cell arrangements operated safely.

876. A submission was made by the prosecutor that the absence of FOPS should have focused attention on the need for protective measures to be taken to ensure that if the truck cabin was under the chute that the reject bin would not operate having regard to the closeness of the cabin to the bin. As I have found, the defendant believed, on reasonable grounds, that protective measures were in place but I have also rejected the prosecutor’s particulars as to the use of a pendant or hard wired switch or an extra pair of sensors and the re-writing of the software code (although particular 12 does not specify the measure either of the use of a pendant or the installation of extra sensors).

877. The defendant is not guilty of the s 10(2) charge so far as particularised in particular 12. The prosecutor has failed to prove beyond reasonable doubt that the measure particularised would have minimised the risk to safety to Mr Oldknow on 18 February 2009 (or the other particularised drivers, if applicable).

CONCLUSIONS

878. I have reached the following conclusions in the matters before the Court:

1. The prosecutor has failed to prove the defendant committed the charged contravention of s 8(2) of the Act with respect to particulars 6, 7, 8, 9 (as to the second particularised measure that the defendant should have insisted on different trucks that had adequate overhead fall protection) and 10 (noting that failures are particularised which correspond to each such particular) in proceeding 2016/00019632.

2. The defendant has proved that it was not reasonably practicable for it to have complied with s 8(2) in the respects particularised in particulars 9 (with respect to the first particularised measure) and 11 (noting that failures were particularised corresponding to each such particular) in proceeding 2016/00019632.

3. The prosecutor has failed to prove that the defendant committed the contravention of s 10(2) of the Act in the respects particularised in proceeding 2016/00019616.

879. The defendant is not guilty of the charges brought under ss 8(2) and 10(2) of the Act. The charges are dismissed.

APPENDICES

Appendix 1 - Ex 130 (792 KB, jpg)

Appendix 2 - Ex 6 location 1 (1.13 MB, jpg)

Appendix 3 - Ex 6 location 5 (377 KB, jpg)

Amendments

06 March 2018 - Typographical, formatting and grammatical errors corrected.

Decision last updated: 06 March 2018