Orr v Cobar Management Pty Ltd

[2019] NSWDC 224

District Court

New South Wales

Medium Neutral Citation:

Stephen James Orr v Cobar Management Pty Ltd [2019] NSWDC 224

Hearing dates:

20-24 November 2017; 27 November 2017, 29 November 2017; 4 - 8 December 2017; 11 December 2017; 27 March 2018; 3 - 7, 10 - 14, 17 - 21, 24, 26 - 28 September 2018; 11 December 2018; 12 - 13 February 2019

Decision date:

27 May 2019

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

Catchwords:

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

WORK HEALTH AND SAFETY – likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable

OTHER – underground mine – worker drowned whilst unblocking drain hole

Legislation Cited:

Criminal Appeal Act 1912
Occupational Health and Safety Act 2000
Work Health and Safety Act 2011

Cases Cited:

Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
Royall v The Queen (1991) 172 CLR 378
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80

Category:

Principal judgment

Parties:

Stephen James Orr (Investigator, Department of Industry, Skills and Regional Development)
Cobar Management Pty Ltd (Defendant)

Representation:

Counsel:
D Jordan SC with C Magee (NSW Department of Industry, Skills and Regional Development)
A Moses SC with J Alderson (Defendant)

    Solicitors:
McCulloch Robertson (NSW Department of Industry, Skills and Regional Development)
Seyfarth Shaw (Defendant)

File Number(s):

2016/174236

Publication restriction:

None

TABLE OF CONTENTS

TABLE OF CONTENTS

Judgment

Introduction

Facts

General background

The dewatering system

Sumps

Drain holes

Strainers

Large capacity pumps

The organisation of mining activities

The safety procedures at the mine

The Mine Safety Management Plan (MSMP)

The MOC Procedure

The CSA Controls

The CSAfe Procedure

The JSA Procedure

Safe Work Procedures

Drug and Alcohol Policy

Safety topic of the month

Enforcement of Safe Work Procedures

The Health Safety Environment and Training Department (HSET)

Regular Inspections by a dedicated Mines Inspector

General practices in relation to sumps prior to the incident

Events leading up to the incident

The 8670 Pump Station Project

Events of 11 June 2014

Evidence of Anthony Gaydon

Evidence of James Russell

Evidence of Tony Chaplain

Evidence of Terry Roberts

Evidence of Jamie Baber

Evidence of Dan Howard

Evidence of Robert Cownie

Evidence of Kenneth McMillan

Evidence of Gavin Booth

Findings of fact relating to the incident

Events after the incident

The Manager’s Specific Instruction – Working in and Around Sumps

Events of 16 June 2014

The autopsy report

The Sump Procedure

The elements of the offence

The relevant law

consideration

Element 3 – Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [6] of the Summons?

The pleaded risk

The likelihood of the risk occurring

The degree of harm

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

The defendant’s knowledge of the pleaded risk

Was the pleaded risk reasonably foreseeable?

Mr McMillan’s instructions at the pre-shift meeting

The particulars of breach

[16] Of the Summons

[17] Of the Summons

[18] Of the Summons

[19] Of the Summons

Conclusion on Element 3

Element 4 - Did the defendant’s breach of duty expose Mr Hern to a risk of death or serious injury?

Causation

The intoxication issue

The Evidence of Dr Judith Perl

Evidence of Dr Michael Robertson

Consideration of the Intoxication Issue

Conclusion on Element 4

Conclusion and Orders

Judgment

Introduction

1. Cobar Management Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed James Hern, a worker at work in the business or undertaking, to a risk of death or serious injury contrary to section 32 of the Act.

2. Mr Hern was employed by the defendant in the services crew at its CSA mine at Cobar (the mine). At about 11.15pm on 11 June 2014, whilst attempting to unblock a drain hole in a flooded sump, Mr Hern’s leg was sucked into the drain hole trapping him under the surface of the water. The water pressure was so great that he could not be removed from the hole for some time and he drowned.

3. The defendant admitted that on the evidence, Elements 1 and 2 of the offence were established beyond reasonable doubt. These elements are set out at [173] below.

4. The issues in the case are:

1. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [16]-[19] of the Amended Summons? (Element 3)

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

Facts

General background

5. The mine is an underground metalliferous mine. It is one of the deepest mines in Australia, with workers operating at a depth of up to 1600m below the surface. The underground conditions in the mine were affected by its geology, in particular, the operation of horizontal stress fields and the mining operations including working on different levels simultaneously, the use of drilling equipment and the use of explosives. These factors produced a dynamic environment within the mine that could not always be reliably predicted.

6. The process of extracting copper ore from the mine was achieved by drilling holes into the earth (stope holes) and placing explosives in these holes. Some of the explosives came in a liquid or gel form, which were held in place by inserting blast bags into the holes. Blast bags were made of plastic and could be inflated with an air hose or were self-inflating. The self-inflating blast bags contained a gas cylinder in them. The gas would be released by pressing a button on the bags; once to cause the bag to inflate rapidly or twice to cause the bag to inflate more slowly.

7. The mine operated in two 12 hour shifts. At shift cross-over in the morning and evening all workers were required to leave the mine. At this time the explosives would be detonated. The rock released by the explosives would be removed by remote control loader and sent for processing. The area opened up by the removal of the rock would be shored up by the installation of steel reinforcing mesh on the walls and ceilings which were sprayed with shotcrete. The shotcrete was a mixture of cement, water and plastic fibres about 25mm in length (plastic fibres). The plastic fibres were added to the shotcrete to strengthen it. When all the rock was removed, the area that had been opened up was backfilled with a mixture known as ‘paste’, which was comprised of crushed rock, the by-product of processing, and cement.

8. The mine consists of a helical roadway known as the decline, which has access points to each level of the mine. Workers go underground by riding in a cage down a shaft to 9 Level or by driving light vehicles from the surface down the decline to the bottom levels of the mine. Most workers travelled to 9 Level by cage and then proceeded further down the mine in light vehicles, because it was quicker to do so. The trip from the surface to 9 Level in a light vehicle took about 40 minutes, because the light vehicles were speed limited.

9. The different levels of the mine were referred to by their metres reduced level measurement (mRL), but some were referred to by the historical position of the level, including 4 Level, 9 Level (9450mRL) and 11 Level (9280mRL). The lower the mRL, the further down the mine the level was. The opposite was true of the historical levels, with 11 Level being the furthest down the mine.

The dewatering system

10. Water was introduced into the mine for the mining process. Waste water and excess ground water were pumped to the surface by the dewatering system. The mine was a relatively dry mine and groundwater was not much of a problem. The dewatering system consisted of a series of sumps, dams, pumps and rising mains.

Sumps

11. Water was collected on the different levels in sumps. Sumps were dug out of the ground at a low point on the level allowing the water to flow down the slope and into the sump. Sumps were usually recessed into a wall off the main access road. A chain was placed across the outside of a sump with a sign on it, to delineate it. The design and location of a sump depended on a number of factors including the ground conditions in the area, the gradient, the ability to get access with a loader to empty it of residue, and the ability to access the area with a production or drill rig to drill a drain hole, if required.

12. The waste water that collected in sumps contained a lot of dirt, rock and plastic fibres. The sumps were intended to allow the dirt and debris to settle out of the water before it was pumped out. When the sump became full of mud and debris, it would be ‘bogged out’ using a front end loader (loader), sometimes referred to in the evidence as a ‘bogger’. The interior of a sump was covered with steel reinforcing mesh and shotcrete. It would also have places from which a chain could be hung for supporting a pump. There were two types of pump used in a sump; an electric submersible flygt pump or an air-powered diaphragm pump. Both types of pump were available from the store in various capacities.

Drain holes

13. Some sumps had a drain hole that was drilled through to the level underneath. The drain hole was usually at the front of the sump to allow easy access to it. The drain hole was positioned at a point well above the lowest point of the sump, such that a sump would not fully empty through the drain hole. Drain holes through to the next level were angled so that the exit point for the water in the ceiling of the sump was at the back of the sump, and not directly above the drain hole on the lower level. This was done to avoid workers and machinery getting wet when work was undertaken on the lower level.

Strainers

14. A drain hole was fitted with a strainer. Strainers were constructed of PVC pipe in two sections that were joined together. The top section had a diameter of about 200mm and was about 800mm high. The top section had holes in the pipe to allow water to drain through it. The lower section had a diameter of about 100mm and was about 500mm high. The bottom section did not have holes in it. The bottom section was placed into the drain hole, so that the top section protruded from the drain hole and filtered rocks and debris from the water. The strainer, when inserted in a drain hole, could sit no higher than 800mm above it. It was necessary to clean around the strainers from time to time to ensure that the drain hole did not become blocked. Most often this involved removing the plastic fibres from around the base of a strainer by hand. Strainers also provided some protection against bodily parts being sucked into drain holes by water pressure.

15. At times the case was presented on the basis that it was necessary for workers to ‘work in’ or ‘enter sumps’ for the purpose of undertaking work. These descriptions were apt to mislead. The design of sumps and the positioning of drain holes meant that it was rare for a worker to have to approach a drain hole to clear a strainer when the water at the drain hole was above gumboot height.

Large capacity pumps

16. At the lower levels of the mine, a series of pumps pumped water to the 8855 Level where there was a dam. From there the water was pumped to the 9 Level, where large pumps then pumped the water to the 4 Level and then to the surface. The pumps at the lower levels of the mine were less efficient because they had to work against increased gravitational pressure of the water (head pressure).

17. At the 8855 Level there were two Wilson Snyder pumps and one Mono pump. The Wilson Snyder pumps pumped water up from the dam on the 8855 Level through to two rising mains to the 11 Level, while the Mono pump pumped water to the 9040 Level. The water entering the dam was very turbulent and muddy and did not have time to settle before being pumped up to the higher levels in the mine. The Wilson Snyder pumps on the 8855 Level were pumping dirty water causing premature wear on the rubber seals of the pumps. These pumps were particularly prone to failure. A sump on the 8855 Level caught any water that overflowed from the dam as well as leakage from the three pumps. The water from that sump drained via a drain hole to the 8820 North sump.

18. The mine also used Warman pumps at various levels in the mine. A Warman pump was attached to a 1000 litre tank that would store the water pumped until it reached capacity. The water would then be pumped out of the tank by an outlet hose. There were references in the evidence that a Warman pump could be used as a portable pump. The evidence did not disclose the size or weight of a Warman pump, but I infer that it would be quite heavy, especially bearing in mind that it could hold 1000 litres or 1 tonne of water.

19. The fixed plant maintenance team looked after the underground pumping systems at the mine. This consisted of preventative maintenance tasks in relation to pumps as well as repairs. From about March 2013, a split inside one of the rising mains rendered the #1 Wilson Snyder pump at the 8855 pumping station, non-operational. The fixed plant maintenance team attempted to repair the rising main in March 2013 using shotcrete but were unsuccessful. The repair of the rising main was difficult because the split was between levels in a place that could not be readily accessed. The installation of a new rising main involved drilling a hole over a considerable distance. Options for redirecting the #1 Wilson Snyder pump were investigated but not implemented prior to June 2014.

The organisation of mining activities

20. In June 2014, workers in the underground production and development team were assigned to four mining crews (A, B, C and D Crew) that worked on a rotating four day on, four day off roster system. Each crew was supervised by a shift supervisor (supervisor) who reported to the shift foreman (foreman). A supervisor worked the same roster as their crew. Foremen were employed at the mine on a rotating eight day on, six day off roster, with an overlapping one day hand-over period. Accordingly, the foremen supervised different supervisors and crews from time to time. The foremen reported to the production manager, Dan Howard.

21. In or about December 2013, the defendant undertook a restructure of its workforce. At that time, each day shift was supervised by a production and a development supervisor together with a foreman. The restructure amalgamated the positions of the production supervisor and development supervisor and placed a supervisor and foreman on each shift. This change increased the number of personnel for whom each supervisor was responsible, but workers were able to contact the foreman via radio if the supervisor was unavailable. The role of supervisors was to balance the aims of managing safety and achieving targets. This involved giving directions to crew members and others working underground, including contractors. Foremen were responsible for monitoring compliance with safety standards, co-ordinating crews and shift changes and monitoring ongoing projects and upcoming jobs.

22. Prior to the start of each shift, the outgoing supervisor conducted a hand-over with the incoming supervisor, the purpose of which was to update them on the work that had been completed during the shift and the conditions within the mine. This occurred over the telephone, with the outgoing supervisor underground and the incoming supervisor on the surface.

23. The outgoing foreman prepared a foreman’s shift plan containing details of the work to be completed during the next shift. This was a rolling document that was updated after each shift to reflect changes, new tasks and priorities. The outgoing foreman conducted a handover with the incoming foreman in the foreman’s office on the surface before the commencement of each shift. The handover included going through the foreman’s shift plan, item by item. The oncoming foreman would also go through the foreman’s shift plan and provide a copy of it to the oncoming supervisor in the foreman’s office on the surface, before the pre-shift meeting with the crew. The foreman’s shift plan included general safety information and specific information for each task identified in it.

24. The supervisor’s role was to execute the elements of the plan involving their crew. The supervisor would prepare a daily shift plan (PLOD Sheet) which set out the roles to be performed and listed the personnel from both the outgoing and incoming crews who were allocated to those roles. Copies of the PLOD Sheet were provided to the crew and contractors during the pre-shift meeting. The pre-shift meeting went for 20 – 45 minutes and included reminders about various safety procedures in the form of a ‘safety topic of the month’. Occasionally the foreman attended pre-shift meetings if they needed to communicate information to the whole crew. The PLOD Sheet provided only a general outline of the work tasks or roles to be performed, for example driving the water truck. It was possible that the tasks or roles outlined on a PLOD sheet would become irrelevant when the workers went underground because priorities changed. PLOD sheets did not set out the manner in which workers were to carry out their job but it was expected that workers would comply with the defendant’s safety procedures when completing the allocated tasks. The PLOD sheet sometimes contained information intended to be communicated to all of the workers underground.

25. At the end of each shift, workers on the outgoing crew returned to the surface, where each member was required to liaise with the incoming crew member who had been assigned to take over their tasks (the cross-shift meeting). The cross-shift meeting took place on the surface in an area outside the muster room, immediately after the pre-shift meeting. The cross-shift meeting was intended to provide an opportunity for information to be passed on between the workers who were responsible for the relevant tasks or roles identified on the PLOD Sheet.

The safety procedures at the mine

26. Every worker at the mine underwent safety induction training when they commenced employment with the defendant. Stage 1 of the induction process was an online training package and test that workers were required to complete at home before attending the site. The online training package included a general overview of work health and safety law (WHS), safety risk management principles, an overview of the hierarchy of the different risk assessment tools in use at the mine, training on matters that constituted “violations” (deviations from understood or accepted work practices), an overview of the Job Safety Analysis Procedure (JSA), an overview of the CSAfe Procedure and a module on safe working at heights, including an overview of the relevant procedures.

26. Stage 2 of the induction process was conducted on site via the delivery of training packages by WHS staff, followed by administration of an induction quiz to test a worker’s retention of the safety concepts associated with the training packages. The training packages consisted of a surface induction and an underground induction. Mr Hern successfully completed the induction quiz on 14 February 2012. Induction refreshers were conducted every two years and records of the training were kept. If refresher programs were not completed within the required period, the worker’s access card would prevent access to the mine until the training had been completed and the records updated.

27. The workers also received training from time to time in relevant competencies, such as operating various pieces of plant.

The Mine Safety Management Plan (MSMP)

29. The MSMP was the overarching safety document at the mine. It referred to each of the key safety policies and procedures at the mine. This included 424 documentary procedures that were in place at the relevant time.

30. The relevant procedures for the determination of the case were as follows:

1. the Management of Change (MOC) Procedure;

2. CSA Controls;

3. the CSAfe Procedure;

4. the Job Safety Analysis (JSA) Procedure;

5. the Working at Heights (WAH) Procedure; and

6. the Working in a Basket (WiB) Procedure.

The MOC Procedure

31. On 13 August 2013, the defendant adopted the MOC Procedure intended to apply to temporary and/or permanent changes to activities, infrastructure, products and services. The purpose of the MOC Procedure was to maximise improvement opportunities while minimising risk. The MOC Procedure was intended to ensure that adopted changes provided the intended benefits without unknowingly compromising health, safety or the environment. A fundamental aspect of the MOC Procedure was to conduct risk assessments and to put in place risk controls. The MOC Procedure applied to physical engineered changes as well as procedural and organisational changes.

32. A change was defined to be any modification, alteration or substitution to a system, process, plant or equipment. The definition excluded normal repairs to restore original functionality, state and configuration of equipment or a system utilising identical procedures, resources or components. Examples of changes included in the procedure were the bypassing or disabling of components or systems that would normally be in operation, any physical change or change in the method of operation and any new changes to procedures, non-routine work, safe work plans, practices and standards or guidelines.

33. The MOC Procedure stated that changes to physical plant would not include the replacement of worn or damaged equipment with a newer machine of the same specification.

34. Sheldon Wilson, one of the foremen, gave an example of a process to which the MOC Procedure was applied as the replacement of the haul trucks used underground in the mine with a different make of haul truck. The MOC Procedure was applied to assess whether the conditions underground were suitable for the use of the new haul truck, including taking measurements of the clearances underground, preparing a training package for the truck drivers to enable them to be trained on the operation of the new trucks and the identification of new processes required to service and maintain the new trucks.

35. The requirement for a risk assessment depended upon the nature and potential impact on the business. A sufficient risk assessment may be the completion of a JSA, but depending on the impact, a formal risk assessment or a specialist team formal risk assessment may be required. The preparation of a JSA was the minimum level of risk analysis provided for by the MOC Procedure.

36. The prosecution case was that the MOC Procedure was never applied to the processes involved in the 8670 Pump Station Project, which I will return to.

The CSA Controls

37. The CSA Controls were a list of 10 “Golden Rules” that workers were required to remember and apply every day they were at work in the mine.

38. The CSA Controls were as follows:

1   Inform my supervisor if I am doing a job which I am not sure of or is    not routine.

2   Make sure I am trained in the job.

3   Only use tools and equipment which are fit for purpose.

4   Wear the correct PPE for the job.

5   Check conditions in the area.

6   Complete CSAfes and JSAs.

7   Follow correct isolation procedures.

8   Comply with site rules and procedures.

9   Perform my work with due care and diligence.

10   Report all incidents that occur.

…to keep me and my workmates safe.

39. The CSA Controls were set out on the back cover of the booklet, described below. Workers were trained on the CSA Controls during their initial induction and received refresher training on the CSA Controls from time to time.

40. On 9 June 2014, Mr Hern was present at the pre-shift meeting when refresher training on the CSA Controls was provided as part of the ‘safety topic‘ of the month, referred to at [58] below.

The CSAfe Procedure

41. As at June 2014, each worker was issued with a blue pocket sized CSAfe booklet containing emergency numbers, a hierarchy of controls, risk matrix, CSA controls and tear out hazard identification forms. Workers were required to have the CSAfe booklet on their person at all times.

42. The front cover of the CSAfe booklet contained the following words:

Three important questions to ask yourself before you start a job:

1.   What am I about to do?

2.   What could go wrong?

3.   What can I do to stop it going wrong?

43. The CSAfe Procedure stipulated that workers were required to fill out a hazard identification form for each task they undertook. The form consisted of a checklist of 13 items and acted as a short risk assessment requiring workers to identify hazards and controls associated with a particular job prior to completing it. The form included a direction that if the hazard could not be adequately managed, the worker was required to conduct a JSA, which had to be signed off by a supervisor or foreman. Workers were also required to conduct JSAs for non-standard tasks, standard tasks undertaken infrequently, or tasks they had not been assessed as competent to undertake. Shift supervisors undertook spot checks to ensure workers were completing CSAfe forms. All of the workers gave evidence that they complied with the CSAfe Procedure at the mine by filling out hazard identification forms for every task.

44. The CSAfe booklet also contained a Hazard Reporting Form. If workers located a hazard they were expected to complete a Hazard Form and return it immediately or at the end of a shift, depending on the seriousness of the hazard. The original of the Hazard Form was to be given to the Shift Supervisor, a copy placed in the Health Environment Safety and Training Development Team (HSET) mailbox and a copy retained by the worker.

The JSA Procedure

45. The JSA Procedure required the workers to ensure that they conducted a JSA when required and in accordance with the JSA Procedure, to actively participate in the development of a JSA, to follow the JSA while undertaking the task and to report any matters that could have been improved or any residual risks that remained after the implementation of the JSA controls.

46. The JSA Procedure required supervisors to ensure that all workers were trained in the JSA Procedure, that workers undertook JSAs when required by the JSA Procedure, to sign off on the JSA as an acknowledgement that the hazards involved in the task were identified and that the implemented controls were reasonable and effective in reducing the risk to an acceptable level within the risk matrix.

47. A worker was not required to complete a JSA for a Standard Job if the worker had been assessed as competent in the task as part of a training program. A Standard Job was defined to be:

Jobs for which the tasks involved are detailed and the hazards and controls are already defined because it has a procedure, instruction, training package, or similar accepted document and the person performing the task is trained and assessed as competent.

48. The environment could have an impact on a Standard Job and was required to be considered when determining if a JSA was required.

49. Non-standard Jobs were defined as those for which there were no training packages or procedures and a JSA was the minimum requirement for those jobs.

50. A JSA was sometimes required for a Standard Job that was done infrequently. For example, where the worker had not done the job for some time and was unfamiliar with the steps involved or the risks posed and where the environment could change during the performance of the job.

51. A JSA required the listing of the steps involved to complete the job, the identification of the hazards involved with each step and the identification of the controls to be implemented for each hazard. The residual risk was then assessed against the risk matrix.

52. A completed JSA was then submitted to a supervisor for approval. Once approved, each worker would then sign the JSA to indicate that they understood it and that they would be adhering to it during the course of the work.

53. The supervisor was required to consider if all of the steps, hazards and controls had been correctly identified, that the risk scores were reasonable and the residual risk sufficiently low to allow the work to proceed.

Safe Work Procedures

54. In addition, the defendant had developed Safe Work Procedures for use in particular tasks or with particular pieces of equipment.

55. Comprehensive working at heights training was provided to workers internally and by external registered training providers. Both Mr Hern and Mr Booth had been at trained at working at heights.

56. The WAH Procedure and the WiB Procedure stipulated that whilst working within an Integrated Tool Carrier (ITC) basket, a worker was required to wear a full body harness attached via a lanyard to an anchor point at all times and could only exit the basket through the front gate when the basket was on the ground.

Drug and Alcohol Policy

57. The defendant had in place a Drug and Alcohol Policy that enforced a zero tolerance approach to any level of drug or alcohol in the system of a worker presenting for work. This was enforced through random drug and alcohol testing. When workers presented their access card for admission to the site, they would be randomly refused entry. The worker would then be required to present to security for admission to the site where the worker was informed that they were required to undergo a drug and alcohol test. The worker would then be required to submit a zero breath sample and urine sample, to be sent for analysis, before being allowed entry to the site for the purpose of working their shift.

Safety topic of the month

58. Workers were also provided with information at pre-shift start meetings on a selected safety topic of the month. This training was used to reinforce the importance of adhering to particular safety procedures in place at the mine.

Enforcement of Safe Work Procedures

59. Both the foremen and supervisors would supervise the conduct of the workers underground and monitor the work that was being undertaken. This included spot checks for the completion of CSAfe forms and compliance with JSA Procedures. Workers were required to work in pairs for safety reasons and partly to remind each other of their responsibilities under the defendant’s safety system.

60. The Effective Personal Behaviour Procedure (EPB) was used to discipline workers for breaches of the defendant’s safety policy in the mine. Supervisors were responsible for the application of the EPB Procedure which could result in the issue of warnings or ultimately the determination of a worker’s employment. For example, Steve Gillett, the captain of the Mines Rescue Team, was dismissed, effective immediately, for failing to comply with the WAH and WiB Procedures on two separate occasions.

61. The application of the EPB Procedure was formal. It required the worker to discuss their actions with the supervisor, the foreman and a member of the HSET to determine the appropriate outcome. Workers were issued with documents relating to the EPB Procedure and required to commit to complying with safety requirements in writing, where that was the outcome of the EPB Procedure.

The Health Safety Environment and Training Department (HSET)

62. The defendant’s safety system was administered by the HSET. The HSET’s responsibility was to implement health, safety and environmental systems, to train the workers on those systems, to maintain a record of the systems and training and to improve the systems in place. The HSET conducted training, performed inspections and audits, reviewed documented policies and updated them when required.

63. Tanya Gilbert was the Manager of the HSET from December 2011 and was one of the management team at the mine, reporting directly to the Chief Executive Officer, Deon Van Der Mescht. Ms Gilbert liaised with the managers of the other departments, particularly Mr Howard, on a daily basis. Ms Gilbert also liaised with the regulatory authorities on behalf of the mine, including preparing the responses to the section 155 notices issued in relation to the investigation of the incident.

64. The documented systems in place at the mine at the time of the incident were exemplary. The documents were expressed in clear and simple language that could be and was understood by the workers they applied to. The content of the training packages in evidence was similarly impressive. Further, the mine had kept comprehensive records of the training that each worker had undertaken and the dates on which the training competency would lapse. This information was computerised and linked to the worker’s access card to prevent access to the site if certain training had not been undertaken by a critical date. In those circumstances, arrangements would be made for the worker to undergo further training before being permitted onto the site.

65. Ms Gilbert was a very impressive witness who ably demonstrated how the documentary systems were implemented in practice and how the training of the workers was undertaken. It was clear from Ms Gilbert’s evidence that the system provided areas of overlap and multi-layering to achieve its aims. I am satisfied on the basis of Ms Gilbert’s evidence, the records and the evidence of the workers in general on this topic, that the safety systems contained in the documents referred to in the evidence were actively and conscientiously implemented in the day to day activities of the mine by the workers and supervisory staff.

Regular Inspections by a dedicated Mines Inspector

66. Inspector Paul Newey was a Mines Inspector stationed at Cobar and was assigned to the mine as its local Mines Inspector. Inspector Newey had extensive experience in the mining industry as a mining engineer before taking up the position as Mines Inspector in 1996.

67. Inspector Newey’s role included ensuring that the mine complied with its regulatory obligations. This involved reviewing the Mine Safety Management Plan and other procedures and conducting underground inspections looking for safety issues. Inspector Newey had the power to issue prohibition and improvement notices under the Act, if he thought that was appropriate.

68. Inspector Newey had conducted multiple inspections before the incident and was familiar with the defendant’s safety system. Inspector Newey did not have any relevant or significant safety concerns about the operation of the mine prior to the incident.

69. Inspector Newey accepted in cross-examination that the conditions in the mine were not static and that they were not conducive to the application of rigid procedures to the tasks undertaken by workers. He understood that procedures like the CSAfe and JSA Procedures allowed workers to have input into the risk management process and acted as a way for workers to identify a task that was outside routine and thereby required a more detailed approach to doing the task safely.

70. Inspector Newey expressed an opinion about the incident that was contrary to the Inspectors charged with investigating the incident who ultimately recommended that the charge be brought. This issue was brought to a head in the content of various ‘Situation Reports’ prepared by Inspector Newey at the request of his superiors. It is not appropriate for me to decide between these opinions and I have not done so. In all other respects, I accept the evidence of Inspector Newey.

General practices in relation to sumps prior to the incident

71. Strainers and drain holes occasionally became blocked with mud and other debris, including plastic fibres, causing water to build up in sumps. From about 2008, when the defendant first started using plastic fibres in the shotcrete, the need to clear them from strainers was a recurring issue in the mine below the 11 Level where shotcrete was used.

72. It was necessary to monitor strainers inserted in drain holes to make sure they did not become blocked. If the drain hole was easily accessible from the roadway close to the top of the sump, a strainer could be approached on foot and cleared by hand or using a pelican pick. A pelican pick was a type of crowbar with a hook on the end of it.

73. This type of task often fell to Terry Roberts. Mr Roberts was a back-fill technician with additional duties to monitor strainers for blockages. Mr Roberts had ordered and received a set of waders for use in doing this work. If Mr Roberts could see the strainer in the drain hole he would approach it on foot and clear the strainer by hand or using a pelican pick. Mr Roberts gave evidence that he would not approach a drain hole if he could not see the strainer because the water level was too high, or if it was missing from the drain hole. In those situations, Mr Roberts gave evidence that there was no protection against the risk that a part of his body could be sucked into the drain hole by the force of the water. The waders used by Mr Roberts were usually hung on the back of his light vehicle or hung up outside the 11 Level supervisor’s office. Mr Roberts believed, and there was evidence from other witnesses, that it was generally known that Mr Roberts wore waders from time to time. The removal of fibres from strainers in drain holes and sumps was a task that was done on a daily basis by Mr Roberts and/or other workers who went past a sump and identified a blockage.

74. Other workers would approach strainers with relatively high levels of water on them in the basket of an ITC. An ITC was a piece of heavy mobile plant with a basket on the front that could be raised or lowered by hydraulics. An ITC was used to lift heavy pieces of equipment, as well as to raise workers in the basket to various heights for the purpose of undertaking different tasks. The ITC would be driven close to the strainer to allow it to be removed from the drain hole or cleared with a pelican pick.

75. There were other occasions in which a sump drain hole would become completely blocked by a combination of dirt and rock, though this was not a common occurrence. Mr Roberts was usually allocated the task of unblocking the drain hole, in those circumstances. He estimated that he did so once or twice per year for about the 10 years prior to the incident. Mr Roberts described a number of methods used to deal with a blocked drain hole. First, workers could use water and compressed air to release a blockage from the level below the sump. This involved using an ITC basket from the level below, feeding a pipe up through the drain hole until it reached the blockage, filling the pipe with water and then using compressed air to propel the water in a jet towards the blockage in order to release it. It was also possible to use this method from the level above. Second, workers on occasions used explosives to blow out a blockage. PVC pipe would be used to feed the explosive up to the blockage through the drain hole. The explosive was then detonated breaking up the blockage. This method was used if air and water were not available to carry out the first method. When drain holes were too deep for blockages to be reached from underneath, explosives could be used to remove the blockages from above. Third, chains attached to the roof or wall of a sump were placed inside drain holes which allowed accumulated material inside the holes to be loosened by agitating the chains.

71. If the water level in a sump was high enough to submerge the strainer, workers would reduce the depth of the water before using one of the methods above to unblock the drain hole. This was usually done by pumping water out of the sump using a pump. Flygt pumps were lowered into the sump from an ITC basket and attached to the roof by use of a chain. An outlet hose would be attached to the pump which would pump water into another sump or into a Warman tank.

72. Tony Walkinshaw, a member of the services crew and the Mines Rescue Captain, gave evidence that about a week before the incident he had unblocked a blocked strainer in a sump by removing it with a loader. The water level had got to a height over the strainer, which was hopelessly blocked and stuck in the drain hole by the water pressure. The workers used a loader to forcibly remove the strainer from the drain hole, causing the water to swiftly and loudly evacuate down the drain hole. Mr Hern was present during this task.

73. Mr Roberts gave evidence that he filled out a CSAfe form for every unblocking task he had completed. He did not believe that the use of water and compressed air gave rise to a hazard that he could not control. He filled out JSAs for unblocking a drain hole when using explosives.

74. The evidence of the workers was that a sump should not be entered when the water level was high, particularly if the strainer was not visible. The workers gave evidence that the method chosen to unblock a drain hole should take into account the size of the sump and the depth of the water present. It was possible to reduce the depth of the water by pumping it down the decline or to another sump before clearing the blockage.

75. It was occasionally necessary to block drain holes deliberately so that work could be undertaken on the level beneath the relevant sump. On occasion workers used plastic ANFO bags or vent bags to block drain holes. ANFO bags were plastic bags in which explosives were supplied to the mine. Vent bags were plastic sheeting that was used to pump air into different parts of the mine for ventilation. Methods of blocking drain holes included making a plug out of rocks and dirt inserted in the plastic which was then wrapped in a chain and put in the drain hole. The end of the chain would be attached to the roof of the sump so that the chain could be used to remove the bag from the hole when it needed to be unblocked. On other occasions blast bags had been used to block a drain hole. Tony Chaplain, a foreman, gave evidence that in his experience when a blast bag was used, the strainer would be placed in the drain hole on top of it to flag the location of the drain hole. The deliberate blocking of a drain hole occurred less frequently than the random blocking of a drain hole by mud, rock and debris.

Events leading up to the incident

The 8670 Pump Station Project

81. In or about December 2013, plans were implemented for the installation of a major pump station at the 8670 Level, to replace some of the smaller pumps that transported water up to the 8855 Level. The 8670 Pump Station Project, involved drilling additional drain holes in sumps on the 8790 and 8730 levels to allow water to flow down to the pump station at the 8670 Level, the creation of a cuddy to house two Mono pumps to be installed at the 8670 Level and the creation of a sump at the 8670 Level to collect the water to be pumped up by the pump station.

82. A series of planning meetings were held to develop the project between various department representatives, commencing in December 2013. There was no consideration given to the MOC Procedure during these meetings.

83. A drain hole was required to be drilled from the 8790 North sump down to the 8760 Level. On or about 30 May 2014, Nicholas Fryer, a production engineer prepared a design of the drain hole that was documented in plans and information sheets to set aside time for the use of the drill rig for this purpose. Mr Chaplain was responsible for executing the plan to drill the drain hole.

84. In order to drill the drain hole in the 8790 sump, the drain hole from the 8820 North sump had to be blocked, to prevent water draining to the 8790 Level and coming into contact with parts of the drill rig that were powered by high voltage electricity. In or about early June 2014, Mr Fryer and Mr Chaplain discussed using blast bags to block the 8820 North sump drain hole to prevent water flowing through it. Mr Fryer considered this to be the best method for blocking the 8820 North sump, because the blockage could be easily removed by puncturing the blast bag with a scaling bar. A scaling bar was a long crow bar used at the mine. Mr Fryer anticipated that the drain hole could either be accessed on foot or in an ITC depending on the height of the water. In his view if the water level was very high a pump could be installed to lower the water level before removing the blockage. Mr Fryer and Mr Chaplain did not discuss any safety issues arising from proceeding in this fashion, at that time.

85. On 6 June 2014, Sheldon Wilson was rostered on as the day shift foreman. At the end of the day shift, he had a discussion with the night shift foreman, Joe Patten and a night shift supervisor, Matt Bennett, regarding the need to block the 8820 North sump drain hole. They agreed that the sump would be cleaned out thoroughly, and that a flygt pump would be installed in the sump with an outlet pipe attached to ensure that the water level and sump could be managed. They agreed that the strainer should be removed before blocking the drain hole. Mr Wilson, Mr Patten and Mr Bennett discussed several options for blocking the sump including the use of ANFO bags wrapped in chains, blast bags or hessian bags wrapped in wire. They did not make a final decision as to which method would be used, leaving this to the discretion of the relevant shift supervisor and operators to whom the task was allocated.

86. During the 7 June 2014 day shift, Robert Job and Mark Clynes extended a pump line to the 8820 North sump using a 110mm poly pipe. They bogged out the sump with a loader and installed a 20kW electric flygt pump in the sump. At the time, they did not have the necessary fitting to connect the pump to the outlet pipe. Mr Job saw a strainer in the sump drain hole which he did not remove during or after the installation of the pump. Mr Clynes recalled marking the location of the 8820 North sump drain hole on the wall with orange paint after he had bogged out the sump.

87. At the beginning of the night shift on 7 June 2014, Mr Bennett allocated Greg Black the task of blocking the 8820 North sump drain hole using blast bags. Mr Bennett and Mr Black had a discussion about the task. Mr Black did not complete the task during the course of the shift because he was preoccupied with other duties.

88. On the day shift of 8 June 2014, Mr Wilson was the shift foreman and Blake Dunne was the shift supervisor. At the handover meeting from the night shift, neither Mr Bennett nor Mr Patten could confirm whether the 8820 North sump drain hole had been blocked although they believed that this had probably not occurred. Mr Job and Mr Clynes were allocated the task of blocking the 8820 North sump drain hole during the day shift of 8 June 2014. Mr Job recalled that at the cross-shift meeting he was told to use blast bags. Mr Job and Mr Clynes had used blast bags previously to contain explosives within stope holes, but neither of them had blocked a drain hole using a blast bag. Neither recalled having a conversation with Mr Dunne or Mr Wilson about how the task should be carried out, how long the drain hole would be blocked for, or how it would be unblocked.

89. Mr Job and Mr Clynes collected several self-inflating blast bags from the 9015 magazine before travelling to the 8820 North sump to block the drain hole. When they arrived, the sump was dry and the strainer was in the drain hole. They attempted to insert a blast bag into the lower narrow part of the strainer but realised that this would not effectively block the drain hole as the strainer did not sit flush with the collar of the drain hole once it was in position. They then inserted a blast bag into the drain hole and inflated it but realised that the inflated blast bag would not expand to fill the diameter of the drain hole. They then inserted an inflated second blast bag alongside the first. They did this by holding the blast bags in place inside the drain hole as they inflated. Based on their visual assessment of the hole Mr Job and Mr Clynes believed that the two bags would effectively seal off the sump drain hole. There was no water in the sump at that time.

90. Mr Job gave evidence that he and Mr Clynes inserted the blast bags about 150mm from the top of the hole as this was a convenient distance from where to reach into the hole while holding the bags. Mr Clynes believed that the bags were flush with the top of the drain hole. They left the strainer leaning against the mine wall near the drain hole because it was not possible to insert it into the drain hole on top of the blast bags. Neither Mr Job nor Mr Clynes recalled discussing completing the task with Mr Dunne or Mr Wilson although as a matter of usual practice, they would have done so. Mr Job completed a CSAfe form for the task of blocking the 8820 North sump drain hole.

91. By the end of the day shift on 8 June 2014 Mr Wilson had been informed that the drain hole had been blocked. He was not aware who had carried out the job, whether it had been completed during the day shift or the previous night shift, or by which method it had been done. At the foreman shift handover meeting Mr Wilson informed Mr Bennett and Mr Patten that the drain hole had been blocked.

92. During the foreman’s handover meeting on the morning of 9 June 2014 Mr Patten and Mr Wilson discussed the water level in the 8820 North sump. Mr Wilson was informed that the installed pump was operational, and the water was at a manageable level. Mr Wilson, Mr Patten, Mr Bennett and Mr Russell had various discussions with one another about maintaining the water level in the 8820 North sump and checking the pumps regularly.

93. On or about 9 June 2014, Mr Roberts drove past the 8820 North sump as he was checking the backfill lines and noticed there was no strainer in the drain hole. The strainer was leaning against the wall. Mr Roberts attempted to insert it in the drain hole but was unable to do as there were two inflated blast bags blocking the hole around 6 inches from the top. Mr Roberts had not previously seen blast bags used to block a drain hole in this manner.

94. On 9 June 2014, Mr McMillan took over from Mr Bennett as the night shift supervisor. During the night shift Mr McMillan drove past the 8820 North sump and saw that the strainer was not in place over the drain hole. Mr Patten told him that it had been blocked so that work could be completed on the 8790 drain hole. Mr McMillan stated that the sump contained no water at that time.

95. The drain hole from the 8790 sump to the 8760 Level was completed by the time of the foreman’s handover meeting on the morning of 10 June 2014, prior to the commencement of the day shift. As further work needed to be undertaken on the 8670 pump station, Mr Patten and Mr Wilson decided to leave the 8820 North sump drain hole blocked to ensure water did not flow down through the mine to the 8670 Level and potentially interfere with electrical equipment. It was anticipated that the 8820 North sump drain hole would remain blocked for a couple of days until work on the 8670 pumping station had been completed. They did not discuss methods for unblocking the 8820 North sump drain hole. During his handover with Mr Chaplain, Mr Wilson communicated that the 8820 North sump drain hole had been blocked by an inflatable bag and the importance of monitoring the water levels.

96. On 10 June 2014, Mr Chaplain travelled past the 8820 North sump at some time during the afternoon. He noticed the water was within the confines of the sump and was at a manageable level. He believed he saw the strainer in place over the drain hole but did not approach the sump to take a closer look.

97. At the foreman’s handover meeting on the evening of the 10 June 2014 Mr Patten and Mr McMillan discussed the need to monitor the 8820 North sump. During that night shift Mr Patten received a report that water was coming out of the 8820 South sump which sat about 10 metres lower than the 8820 North sump. Mr Patten checked on the 8820 North sump at around 5.30am on the morning of 11 June 2014. He drove in via the North access road. He observed that the sump was completely full and that water was flowing down into it from the 8855 Level. In Mr Patten’s experience, the volume of water in the 8820 North sump was unprecedented. He called the fixed plant team and was informed that one of the 8855 Wilson Snyder pumps was not operational and that it could not be fixed immediately as the team was waiting on replacement parts to arrive. As water built up in the 8855 dam, it overflowed into the 8855 sump which drained to the 8820 North sump by the drain hole.

98. Mr Patten believed that the volume of water flowing to the 8820 North sump would be too much for the installed flygt pump to handle. Water was running down the decline in the 8820 South side of the mine. Mr Patten was concerned about water damaging the top dressing and rendering the roadway unsafe. The roadways in the mine were cut into rock and covered with top dressing to make them even. Water running down the roadways created a potential hazard to truck drivers transporting materials within the mine. Consequently, Mr Patten believed that reducing the water level in the 8820 North sump was a matter of some urgency. He believed that the best way to address the problem was to arrange for the pump on the 8855 Level to be fixed or to stop water being pumped up to the 8855 Level from lower levels in the mine.

Events of 11 June 2014

99. There were a number of discrepancies in the evidence about these events. I have summarised the evidence of the various witnesses and will make factual findings later where necessary. I will make credit findings on a witness by witness basis, if it is necessary to do so.

100. At the foreman’s shift handover meeting on the morning of 11 June 2014, Mr Patten and Mr Chaplain discussed the need to monitor the progress of the repairs to the 8855 Wilson Snyder pump and to check the water level at the 8820 North sump. Mr Chaplain recalled having a similar conversation with Mr Russell before the day shift commenced.

Evidence of Anthony Gaydon

101. During the course of the day shift, Mr Gaydon was working on the services crew with Craig Yode, when he received a radio call from a truck operator informing him that there was water coming out of the 8820 Level onto the decline. Mr Gaydon travelled to the 8820 Level on the southern side, where he observed water leaking out of the fresh air rise (FAR). A FAR is a brick wall built across an access way that had a fan installed in it. The fan was used to circulate air within the mine.

102. Mr Gaydon and Mr Yode then travelled to the 8820 North access from where they could see the sump. Mr Gaydon gave evidence that the water was higher than the high water mark shown on photographs taken after the incident. Mr Gaydon gave evidence that the water was only a couple of inches below the power box on the wall of the mine. Mr Gaydon tried to make contact with the electricians via radio but these attempts were initially unsuccessful. Mr Gaydon isolated the power to the 8820 Level by turning off the electricity at the mains. He finally contacted Mr Russell by radio, informing him that the water levels were very high. Mr Russell said that he would attend himself.

103. Mr Russell attended the 8820 North sump and instructed Mr Gaydon and Mr Yode to keep an eye on the water level. After Mr Russell left, Mr Gaydon and Mr Yode checked the 8790 Level (the level below) and observed that no water was flowing through the drain hole. Mr Gaydon concluded that the drain hole in the 8820 North sump was blocked. In a subsequent conversation over the radio Mr Russell told Mr Gaydon he believed that there was a vent bag over the drain hole with a rock on top of it. Mr Gaydon was unsure why this had occurred and decided to enter the sump to unblock the hole. Mr Gaydon removed his clothing with the exception of his gumboots and underwear and walked into the water. He walked to the approximate location of the drain hole attempting to find it by using his feet. By the time he got to the approximate location of the drain hole the water was over his head. At about this time he realised there was no strainer in the drain hole and panicked because there was a risk he could be sucked into the drain hole. Mr Gaydon exited the water immediately and radioed Mr Russell, telling him “there’s no vent bag in there”. Mr Russell told Mr Gaydon that the drain hole had been deliberately blocked and to “get the f… out of there”. Mr Yode placed a chain and a sign across the front of the 8820 North sump before leaving to attend to other duties.

104. Mr Gaydon recalled completing a CSAfe for the task of unblocking the 8820 North sump drain hole. He did not complete a JSA in relation to the task. When asked why he entered the sump to try and unblock the drain hole before using a pump to reduce the volume of water, Mr Gaydon said that he panicked when he saw the volume of water. He was concerned for the men working on the levels underneath as he believed the water was capable of causing a collapse of the level. Mr Gaydon gave evidence that he entered the sump on foot rather than using an ITC as the ITC was being used for other work and it could not be driven into water over 1 metre deep as the water would likely cause significant damage. Mr Gaydon and Mr Yode left the area and did not go back there during the course of the day shift on 11 June 2014.

105. At the completion of the day shift Mr Gaydon attended the cross-shift meeting on the surface where he spoke to Mr Hern, Gavin Booth and Andrew Dobbs who had been assigned to undertake the work to be done by the services crew on the 11 June 2014 night shift plan. Mr Gaydon gave evidence that the three night shift workers were laughing at him and recalled Mr Hern calling him ‘swamp donkey’ and ‘little Buddha’. ‘Buddha’ was the nick name commonly given to Mr Roberts. Mr Gaydon told Messrs Hern, Booth and Dobbs that he had been in the 8820 North sump and that the drain hole was blocked and there was no strainer in it. Mr Hern said to Mr Gaydon words to the effect of ‘you are fucking off your head’, ‘fancy swimming around in that stinking dirty water’ and ‘well I can guarantee you I won’t be in there’. Mr Gaydon replied with words to the effect of ‘youse have got the last fucking laugh because youse are the ones that are going to have to unblock it, not me’. Mr Gaydon stated that these comments occurred in the context of a light-hearted exchange.

106. I found Mr Gaydon to be a witness whose evidence was overstated and given in a slightly dramatic fashion. I do not accept that the water level, when he observed it, was above the high water marks on the walls depicted in the photographs taken after the incident. That evidence, in my view, cannot be reconciled with common sense, and is contrary to the evidence of Mr Chaplain, which I prefer. I accept his explanation as to why he entered the water and that explanation fits with my impression of him that he tended to overreact to situations. I am not satisfied that I should accept his evidence about his radio communications with Mr Russell, where he suggested Mr Russell did not know that the drain hole had been deliberately blocked for the reasons that follow. First, the fact that the drain hole was blocked was noted on the foreman’s daily shift plan and Mr Russell had a copy of that. Second, the direction that the 8820 North sump was to be left blocked until further notice was written prominently on the PLOD sheet and Mr Russell and Mr Gaydon both had a copy of that. Third, Mr Yode was not called to give evidence. Fourth, this issue was not canvassed with Mr Russell in evidence, but I note that his memory of the events was poor. Fifth, Mr Gaydon had reason to give that evidence and paint his conduct in a better light. Mr Gaydon had been the subject of disciplinary action for entering the sump as part of the investigation by the defendant into the incident. It was in Mr Gaydon’s interests to maintain the same version of events that he provided to the defendant in those disciplinary proceedings. I note that his evidence was incomplete in some regards, and for the reasons that I will come to, I am satisfied that he told Mr Hern at the cross-shift meeting that the drain hole had been blocked with blast bags.

264. As to particulars [17(b)(iii) and (iv)], for the reasons already given, I am not satisfied that the reduction in the volume of water in the sump was reasonably practicable.

265. As to particular [17(b)(v)], for the reasons already given, I am not satisfied that the prohibition was reasonably practicable because it was not reasonably foreseeable that workers would enter the water in which there was a risk of submersion, including water of the height specified.

266. As to particular [17(b)(vi)], this is no more than a re-statement of the WiB Procedure, which was already in place, regularly followed, and properly enforced. The prosecution contended that I should not have regard to the WiB or WAH Procedures because the defendant did not produce them in response to a number of section 155 notices sent to it during the investigation. I interpolate that the submission is that the defendant admitted that the WiB and WAH Procedures did not apply to the task of unblocking the drain hole because the defendant was silent as to their existence. I reject that submission for the reasons that follow. First, there were a large number of section 155 notices sent during the investigation seeking a large volume of documents. The defendant has a reasonable argument to say that the section 155 notices relied on by the prosecution to base this argument were not all drafted in such a way that it was clear that the WiB and WAH Procedures should have been produced. Second, the factual account given by Mr Booth squarely raised the WiB and WAH Procedures. Presumably, Mr Booth’s evidence was the reference point for all of the interviews undertaken with the other workers and the management staff at the mine. It appears that the investigators did not squarely ask for any work instructions relevant to working from a basket of an ITC during the course of the investigation. This was directly relevant to Mr Hern’s training and how he might have applied that training at the time of the incident. Third, there were references in the materials produced to the investigators that referred to the WiB and WAH Procedures, including the responses to questions asked pursuant to section 155 compiled by Mr Howard and references to those procedures in other documents including the MSMP and the induction packages. Fourth, the evidence overwhelmingly points to the conclusion that the WiB and WAH Procedures existed, were implemented and enforced at the mine.

267. As to particular [17(b)(vii)], this was not the subject of much evidence in the case. It seems to have been a procedure developed entirely after the incident and not one that was used prior to the incident. The evidence is insufficient to satisfy me beyond reasonable doubt that the matter was reasonably practicable.

268. Taking into account all of the evidence, the requirements of particular [17(b)] involve the application of considerable hindsight. I am not satisfied that the adoption of the Sump Procedure was reasonably practicable to the criminal standard.

[18]   Of the Summons

[18]   The Defendant failed to ensure, so far as was reasonably practicable, the provision of adequate information and instruction to Mr Hern, in respect of the task of unblocking the 8820 North sump drain, in particular in respect to:

(a)   the depth of water that was in the sump; and/or

(b)   the location of the drain hole; and/or

(c)   the equipment that had been used to block the drain; and/or

(d)   the procedure to use for unblocking the sump drain, including the plant, tools and equipment required for the task; and/or

(e)   a prohibition on entering the water at the 8820 North sump where the level of the water was above ‘gum boot height’ or the level of water could not be easily determined.

286. As is apparent for the reasons already given, I am satisfied that Mr Hern had most of the information required by this particular, prior to or during his first attempt to unblock the drain hole. That information had been conveyed to him through the operation of the defendant’s safety system.

287. I am satisfied that Mr Hern knew the depth of the water from speaking to Mr Gaydon at the cross-shift meeting, and/or to others about Mr Gaydon’s conduct on the previous shift. Alternatively, Mr Hern knew the depth of the water when he approached the drain hole in the ITC and used the scaling bar to find the drain hole.

288. I am satisfied that Mr Hern knew of the approximate location of the drain hole by the markings on the wall of the mine and that he actually located it in his first attempt to unblock the drain hole. On the evidence, I am satisfied that he could not reach the blast bags because they were too far down the drain hole taking into consideration the length of the scaling bar and the depth of the water.

289. I am satisfied that Mr Hern had been told by Mr Gaydon that the drain hole had been blocked with blast bags. Accordingly, Mr Hern told Mr Booth and Mr Walkinshaw that he was going to ‘pop the balloon’.

290. I am satisfied that in his first attempt to unblock the drain hole Mr Hern was using appropriate equipment for the task. During the first attempt, Mr Hern would have realised that the scaling bar was not long enough and that he needed a longer instrument. I am satisfied that Mr Hern knew there were other suitable tools or implements available for the task.

291. For the reasons already given, Mr Hern knew of the risk posed by entering the water to unblock the drain hole. I am uncertain if declaring the prohibition would have had any impact on safety in the circumstances. At the time of the incident, Mr Hern was in breach of the defendant’s safety system in a number of significant respects. First, he removed his underground PPE. Second, he rode in the ITC basket and alighted from it in contravention of the WiB procedure. Third, he failed to comply with the JSA procedure. I am satisfied that Mr Hern was aware that he could be disciplined to the extent of being terminated for these breaches of the defendant’s safety system, the first two of which were deliberate. In the circumstances, I am satisfied that there was a significant possibility that Mr Hern would have gone into the water to retrieve the scaling bar even if he had been prohibited from entering the water.

292. I am not satisfied beyond reasonable doubt that the steps involved in this particular were reasonably practicable.

[19]   Of the Summons

[19]    The Defendant failed to ensure, so far as was reasonably practicable, the provision of adequate supervision to Mr Hern, in respect to the task of unblocking the 8820 North sump, in particular in respect to:

(a)   ensuring, so far as was reasonably practicable, a safe work environment in accordance with paragraph 16 above; and/or

(b)   ensuring, so far as was reasonably practicable, a safe system of work in accordance with paragraph 17 above.

293. Mr Hern and Mr Booth were in radio contact with Mr McMillan and Mr Cownie during the course of the night shift on 11 June 2014. Both Mr McMillan and Mr Cownie were available to attend the sump and would have done so, if Mr Hern or Mr Booth had requested their attendance.

294. Mr Cownie understood that he would be told before the service crews undertook the work. I am satisfied that it was his intention to attend the sump when he was told that the work was ready to proceed.

295. For the reasons already given I am not satisfied beyond reasonable doubt that it was reasonably practicable for Mr McMillan to direct the service crews to reduce the volume of the water in the sump before attempting to unblock the drain hole, particularly when Mr McMillan had not had the opportunity to assess the situation for himself.

296. For the reasons already given, I am not satisfied beyond reasonable doubt that it was reasonably practicable for Mr McMillan to direct the service crews to undertake a JSA when he had not had the opportunity to assess the position for himself.

297. For the reasons already expressed I am not satisfied beyond reasonable doubt that the individual steps involved in [17(b)] of the Summons were reasonably practicable. Further, I am not satisfied beyond reasonable doubt that supervision in respect of those elements was reasonably practicable.

Conclusion on Element 3

298. I am not satisfied beyond reasonable doubt that the prosecution has established Element 3.

Element 4 - Did the defendant’s breach of duty expose Mr Hern to a risk of death or serious injury?

Causation

299. The principles to be applied were not in dispute and are set out at [197] to [199] above.

300. For the reasons expressed, I have concluded that the defendant did not breach its duty by reference to the particulars of breach pleaded in [16]-[19] of the Summons.

301. The Site Induction training package delivered to the workers at the mine included the statement that ‘working safely is a condition of employment at the CSA Mine’. That training also provided that the defendant expected the workers to follow all CSA guidelines and procedures.

302. The Surface Induction included training on risk management including how to identify hazards that were hidden and/or developing. This training also set out the three types of human error, including slips, lack of knowledge to select the appropriate plan of action and violations which were defined as deviation from understood and accepted normal practice for whatever reason. This training dealt with the identification of the likely outcomes of failing to identify and control a hazard that included death and serious personal injury.

303. I am satisfied that from the training provided to the workers at the mine that they knew that the work in the mine was dangerous and that in order to prevent risks to their health and safety, that it was essential that they complied with the procedures that they had been trained in.

304. The defendant had extensively trained Mr Hern and the other workers at the mine in various procedures that were intended to protect them from being exposed to risks to their health and safety. The dynamic nature of the conditions in the mine were such that it was not possible for the defendant to foresee every scenario that the workers may face during the course of a day’s work and the only available course was to train the workers in procedures, which if applied, would avoid risks to the workers’ health and safety. For the reasons already given, Mr Hern deliberately failed to follow the WAH and WiB Procedures, the PPE induction, the JSA Procedure and failed to comply with Mr McMillan’s instruction to involve him in the planning of the task. If Mr Hern had complied with these procedures and the instructions of Mr McMillan, he would not have been exposed to the pleaded risk.

305. Mr Hern also failed to follow the advice of Mr Booth. It was unnecessary to enter the water to retrieve the scaling bar. This was recognised by Mr Booth who counselled Mr Hern against doing so on a number of occasions. The risk to safety posed by the scaling bar going through the drain hole was minor. Contrary to that advice, Mr Hern did get into the water. Mr Booth also advised Mr Hern to put his harness on after he had removed his clothes. Mr Hern declined to do so. If Mr Hern had followed Mr Booth’s advice he would not have been exposed to the risk or it would have been minimised.

306. Finally, Mr Hern put himself in close proximity to the drain hole when the water was released. I am satisfied that Mr Hern knew of the risk of being sucked into the drain hole when the water was released, but he did not act on that knowledge.

The intoxication issue

307. The defendant further contends that Mr Hern failed to comply with the defendant’s Drug and Alcohol Policy, by reporting for his shift on 11 June 2014 after consuming a sufficient amount of alcohol to produce the readings in his blood and urine found at autopsy. The prosecution contends that the alcohol content in Mr Hern’s blood and urine were produced after his death as a result of bacterial proliferation. On this issue the parties each relied on an expert pharmacologist.

The Evidence of Dr Judith Perl

308. The Prosecution called Dr Judith Perl, Pharmacologist. Dr Perl is an eminent pharmacologist whose principal area of research since 1979 has been on the effects of alcohol and drugs on psycho-motor performance skills.

309. Dr Perl opined that it was highly possible that the alcohol detected in Mr Hern’s blood and urine was produced by microbes synthesising with alcohol after death. Dr Perl relied on studies demonstrating that there was an enhanced risk of microbial synthesis of alcohol in bodies recovered from water. The internationally accepted sample for toxicological examination is femoral blood or vitreous humour. Vitreous humour samples are preferred because there is less likelihood of artifactual rises in drug concentrations due to post mortem redistribution. Bacterial decomposition in contamination is much more common in deceased persons who suffer extensive trauma or whose bodies are exposed to soil and soil contaminated water, for instance, drowning victims, particularly in rivers and dams. Significant alcohol concentrations have been detected in blood and urine samples of some drowning victims who were very unlikely to have consumed alcohol, for example, young children.

310. Dr Perl opined given the circumstances of Mr Hern’s death, that is, drowning in muddy water, that the alcohol in his blood and urine could have been created post mortem. Dr Perl assumed that the sump contained a large number of microbes capable of generating alcohol. It is possible that swallowing water containing these microbes could have infiltrated the blood and tissues surrounding his gastrointestinal tract, resulting in the formation of alcohol after death, particularly given the autopsy was conducted five days after his death and Dr Perl was unsure about whether his body would have been refrigerated for the entirety of this time.

311. Dr Perl opined that even if Mr Hern’s blood alcohol concentration was arrived at by pre-death consumption, there would not have been an impairment in Mr Hern’s psychomotor skills to any appreciable degree.

312. On the basis that Mr Hern’s blood alcohol concentration was arrived at by pre-death consumption, Dr Perl did not take significant issue with Dr Robertson’s calculations of the number of standard drinks to be ingested to give rise to the blood alcohol concentration in his femoral blood.

Evidence of Dr Michael Robertson

313. Dr Robertson is a forensic toxicologist with over 25 years’ experience. His doctoral research was conducted on post mortem creation of alcohol.

314. Dr Robertson agreed with Dr Perl that microbial synthesis of alcohol post mortem can occur. However, he contended that the examples used by Dr Perl to support her hypothesis, based on the studies cited by her, were not consistent with the circumstances associated with Mr Hern’s death. Mr Hern did not experience major trauma that would have led to rapid contamination of the body compartments. Whilst he drowned, he was not in the water for an extended period of time, in fact it was a very short period of time in comparison to the studies relied on by Dr Perl, where the shortest period of submersion was approximately 12 hours. Dr Robertson opined, based on the cited studies, that 12 hours was the minimum period of time required for post mortem alcohol production.

315. Dr Robertson disagreed with Dr Perl’s conclusion that the alcohol readings in Mr Hern’s blood and urine were produced post mortem for the following reasons. He was recovered from the water within 15 minutes, his body was refrigerated shortly after his death, there was no evidence of bacteria transmigrating from his gut or lungs found at autopsy, the blood collected was femoral blood, there was no suggestion that the bacterial transmigration was so advanced that the bacteria contaminated Mr Hern’s urine, and the presence of alcohol in both blood and urine with the urine being at a higher concentration was more consistent with ingestion of alcohol prior to death. Dr Robertson relied on medical records to demonstrate that there was some period of refrigeration of Mr Hern’s body at the local hospital prior to it being transported to Newcastle.

316. Dr Robertson concluded that the presence of alcohol in Mr Hern’s blood and urine was from pre-death alcoholic consumption. Based on this he calculated that in the hour prior to commencing work at 6.30pm, Mr Hern would have needed to ingest between three to seven standard drinks of alcohol to reach the blood alcohol concentration levels found in his femoral blood sample. The amount of standard drinks required to reach this blood alcohol concentration increase if the period of alcohol ingestion increased. For example, if Mr Hern had been drinking for a period of three hours up to the time of commencement of his shift at 6.30pm then a further three standard drinks would be required to reach the appropriate blood alcohol concentration.

Consideration of the Intoxication Issue

317. On this issue, I prefer the expert evidence of Dr Robertson, for the reasons that follow. First, the issue was more closely related to Dr Robertson’s training study and experience. Dr Robertson completed his PhD on the accrual of post mortem blood alcohol. By contrast, Dr Perl was reliant on the assessment of peer reviewed publications by others, to hypothesise that Mr Hern’s alcohol readings were produced post mortem. In this regard, Dr Perl paid more attention to the general possibility that alcohol could be produced post mortem and by assuming there was a high level of bacteria in the water rather than assessing if the circumstances in the present case could be compared to the studies in the literature. Second, the circumstances of Mr Hern’s submersion do not correlate with the circumstances of submersion of the subjects in the studies Dr Perl relied on. Third, the higher urine reading compared to the blood level is more consistent with pre-death alcohol consumption. Fourth, the proliferation of bacteria in Mr Hern’s urine required a level of sugar, described by Dr Perl as ‘pre-diabetic’. There is no evidence that Mr Hern had such a blood sugar level and this impacts on the reliability of Dr Perl’s opinion.

318. Dr Perl and Dr Robertson agreed on the assumptions required to extrapolate alcohol consumption, if it was assumed that Mr Hern’s readings were a result of pre-death consumption as opposed to post mortem production. This resulted in the consumption of a range of between three to seven standard drinks in the hour leading up the commencement of the shift. The longer the period in which the alcohol was consumed, the more alcohol required to achieve the post mortem readings. By reason of the relatively low readings detected, I am not satisfied that at the time when Mr Hern entered the water there would have been any appreciable impairment of his physical or mental abilities.

319. It does not follow from my preference as to Dr Robertson’s evidence that Mr Hern was in breach of the defendant’s drug and alcohol policy. There is no evidence that Mr Hern was displaying any adverse effects of alcohol during the course of his shift on 11 June 2014. Whilst the opinion of Dr Robertson is persuasive, so are the objective facts that suggest that Mr Hern was not affected by alcohol at any time during the shift on 11 June 2014.

320. In all of the circumstances, I am not satisfied that the post mortem alcohol readings are significant to the causation issue.

Conclusion on Element 4

321. I am not satisfied beyond reasonable doubt that the prosecutor has proved Element 4.

Conclusion and Orders

322. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

323. The matter is adjourned to 24 June 2019 to allow the prosecutor to consider its position in relation to an appeal pursuant to section 5AE Criminal Appeal Act1912.

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Decision last updated: 04 June 2019