Orr v Hunter Quarries Pty Ltd

[2019] NSWDC 634

District Court

New South Wales

Medium Neutral Citation:

Orr v Hunter Quarries Pty Limited [2019] NSWDC 634

Hearing dates:

16-19, 24, 27 April 2018; 1-4, 7-11, 14-18, 21-23 May 2018; 8 June 2018; 26 July 2018; 27 August 2018; 7, 11 September 2018; 9, 19, 26 October 2018; 12, 19, 23 November 2018; 1, 6 February 2019; 4 March 2019; 2-5 April 2019; 23, 29 May 2019; 11-12 June 2019

Date of orders:

08 November 2019

Decision date:

08 November 2019

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
(2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).
(3) The matter will be listed on a date for entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

Catchwords:

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

PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury

PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known

 

PROCEDURAL – foreseeability – whether there was a causal relationship between the act or omission and the risk - measures to guard against a risk to safety that are reasonably practicable – guard against inadvertence to fullest extent practicable – not always possible to foresee inadvertence by a disobedient worker

 

OTHER – unforeseen behaviour of worker – no one could have foreseen operation of the excavator in that location, in that fashion – worker had been instructed to perform other tasks, not to operate excavator on rocky slope – no breach in failing to risk assess potential for excavator to overturn on rocky slope – risk unknown and therefore unforeseen

  OTHER – ROPS – Roll Over Protective Structure – excavators not on list of vehicles on which ROPS were required to be fitted – equipment not covered by ROPS standards must be the subject of a Risk Assessment – no ROPS required if excavator used on a flat area – risk of earthmoving machines overturning increases as variables increase – risk of excavators rolling over in mines and quarries

Legislation Cited:

Criminal Appeal Act 1912 (NSW)
Mine Health and Safety Act 2004 (NSW)
Occupational Health & Safety Act 1983 (NSW)
Occupational Health and Safety Regulation 2001 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2011 (NSW)

Cases Cited:

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIRComm 267; (2001) 110 IR 57
Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553
Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117
Morrison v Milner and Baldwin (No. 2) [2009] NSWIRComm 191; (2009) 191 IR 158
Nash v Silver City Drilling Pty Ltd [2017] NSWCCA 96
Orr v Cobar Management Pty Limited [2019] NSWDC 224
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
R v Commercial Industrial Construction Group Pty Limited [2006] VSCA 181
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Simpson Design & Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 214 IR 373
Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
Smith v The Broken Hill Proprietary Company Ltd [1957] HCA 34; (1957) 97 CLR 337
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
The Queen v Baden-Clay [2016] HCA 35; (2006) 258 CLR 308
Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94
Walplan Pty Ltd v Wallace (1985) 8 FCR 27
WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Limited [2001] NSWIRComm 278
WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited [1998] NSWIRComm 200; (1998) 82 IR 80
WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) [1999] NSWIRComm 453; (1999) 101 IR 239
WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166

Texts Cited:

Australian Standard AS-2294 – 1997
NSW Government Gazette 51/2012 dated 21 December 2012
Guideline for Mobile and Transportable Equipment for Use in Mines MDG-15
International Standard ISO 12117-2
NSW Government Safety Bulletin dated 12 January 2015, entitled “Roll-over Incidents involving load shifting plant”
“Roll-over protection excavator cabs become a reality” first published in Aggregates Business Europe November December 2010
Safety Bulletin dated 11 April 2011 from the Queensland Government
WorkCover Obligations of Plant Operators
WorkCover Position Paper dated May 2003 entitled “Protective Structures for Earth-moving Equipment”

Category:

Principal judgment

Parties:

Stephen James Orr (Prosecutor)
Hunter Quarries Pty Limited (Defendant)

Representation:

Counsel:
Ms K Nomchong SC, C Magee, N Broadbent (Prosecutor)
J Glissan QC, D Nagle, G Diggins (Defendant)

  Solicitors:
McCulloch Robertson (Prosecutor)
Lancaster Law & Mediation (Defendant)

File Number(s):

2016/266431

Judgment

Introduction

The Elements of the Offence

The Relevant Law

The Amended Summons

Authority to Bring Proceedings

Structure of the Defendant

Mine Operator

Layout of the Quarry

Caterpillar 345C Excavator (CAT 345C)

ROPS

Standards and Other Safety Material

Work Health and Safety Regulation

The Defendant’s Key Employees

Training of Mr Messenger

Mine Safety Management Plan

WHS System at the Quarry

Evidence of Workers at the Quarry

Evidence of Brian John Russell

Evidence of Terry Ross Black

Evidence of Thomas Roy Guy

Evidence of Daniel Mark Bridges

Evidence of Paul Stewart Henderson

Evidence of John Leonard Gillespie

Findings of Fact – What happened on 9 September 2014

Evidence of Senior Employees of the Defendant

Evidence of Richard Alexanda Badior

Evidence of Duane Allen Harrison

Evidence of Navtej Pun

Evidence of Neil Thomas Canavan

Consideration of the Risk Assessment of 22 January 2014

Findings of Fact – Safety of Work at the Quarry

Evidence in relation to ROPS

Evidence of Jeff Samuels

Evidence of Jason McCallum

Evidence of Shane Richardson

Findings of Fact in relation to ROPS

Element 1 – The defendant was conducting a business or undertaking

Element 2 – The defendant owed a work, health and safety duty

Element 3 – Failure to comply with the health and safety duty

Exposure to Risk

Reasonably Practicable Measures

Foreseeability of the Risk

Consideration of Element 3

Element 3 in respect of the operation of the excavator at the time of the roll-over

Element 3 in respect of the everyday operation of excavators

The Plant Charge

The Systems Charge

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

Conclusion and Orders

Judgment   

Introduction

1. Hunter Quarries Pty Limited (the defendant) pleaded not guilty to a charge that being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed Mr Ryan Messenger to a risk of death or serious injury contrary to s 32 of the WHS Act.

2. The defendant owned and operated a hard rock quarry at Karuah in New South Wales. The defendant employed Mr Messenger as a Leading Hand and Machine Operator. On 9 September 2014 Mr Messenger was operating an excavator on an uneven slope at the northern end of the quarry. The excavator rolled over and Mr Messenger was crushed inside the cabin. He died as a result of injuries sustained in the accident.

3. The issues to be determined are:

1. Was the defendant conducting a business or undertaking?

2. Did the defendant owe Mr Messenger a health and safety duty under s 19(1) of the WHS Act?

3. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in pars 11 and 12 of the Amended Summons?

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

The Elements of the Offence

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

5. Section 32 of the WHS Act provides:

“A person commits a Category 2 offence if:

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

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

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

6. The elements of the s 19 offence are:

Element 1   The defendant was conducting a business or undertaking;

Element 2   The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of:

1. workers engaged by it or workers whose activities are influenced or directed by the defendant;

2. while the workers were at work in the business or undertaking;

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

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

The Relevant Law

7. The objects clause in s 3 of the WHS Act provides:

“(1)   The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by:

(a)   protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

…

(h)    maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2)   In furthering subsection 19(1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

8. The offence is one of strict liability: s 12A of the WHS Act.

9. The content of the duty is set out in s 19 of the WHS Act which relevantly provides:

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

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

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

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

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

…

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling, and storage of plant, structures and substances, and

…

(f)    the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.”

10. The requirement to “ensure” means to guarantee or make certain: Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470.

11. The meaning of “worker” is dealt with by s 7(1) of the WHS Act which provides:

“A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a)   an employee, or

(b)   a contractor or sub-contractor, or

(c)   an employee of a contractor or sub-contractor, or

(d)   ...”

12. A duty provided for by the WHS Act is not transferrable: s 14 of the WHS Act. Section 16 of the WHS Act provides that more than one person can have a duty, and says:

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

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

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

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

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

13. Section 17 of the WHS Act deals with management of risks and provides:

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

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

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

14. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the WHS Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.

15. The word “risk” is not defined in the WHS Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94 at [67].

16. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. A distinction must be drawn between the specific risk that manifested in the incident and the general class of risk on which the analysis must focus. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.

17. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.

18. “Reasonably practicable” is defined in s 18 of the WHS Act which provides:

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

(a)   the likelihood of the risk concerned occurring, and

(b)   the degree of harm that might result from the risk, and

(c)   what the defendant knows or ought reasonably to know about;

(i)   the risk, and

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

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

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

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

20. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.

21. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]; (2001) 110 IR 57.

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

23. The words “reasonably practicable” indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment, does not without more demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

24. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) [1999] NSWIRComm 453; (1999) 101 IR 239.

25. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited [1998] NSWIRComm 200; (1998) 82 IR 80 at 85; Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 at [32].

26. A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v The Broken Hill Proprietary Company Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

19. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore it was not reasonably practical to guard against it: WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166 at [129].

20. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]; (2016) 93 NSWLR 338.

21. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

22. Regard must be had to the scope and objects of the WHS Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]; (2011) 214 IR 373. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga UndergroundOperations at [130].

23. Section 275 of the WHS Act provides that an approved code of practice is admissible in proceedings for an offence against the WHS Act as evidence of whether a duty under the WHS Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.

24. Part 13 of the WHS Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 provides:

“Imputing Conduct to Bodies Corporate

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

33. Section 244(1) is a deeming provision that has the effect of facilitating proof of the responsibility of a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38; Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 at [37]-[38]. The words “engage in conduct” are defined to include an omission: s 4 of the WHS Act.

The Amended Summons

34. The particulars of the offence are set out in Annexure A to the Amended Summons as follows:

“The particulars of the offence under section 32 for a breach of section 19(1) of the WHS Act are as follows:

1 At all material times the Defendant, being a corporation, was a person conducting a business or undertaking within the meaning of that term in the Work Health and Safety Act 2011 (NSW) (WHS Act).

2   At all material times the Defendant, as part of its business or undertaking:

(a) was the nominated mine holder and mine operator under section 22 of the Mine Health and Safety Act 2004 (NSW) of the quarry known as the Karuah Quarry, Karuah (Quarry);

(b)   extracted andesite, a hard igneous rock, which was processed into blue metal rock in a range of aggregate sizes for road, building and landscaping projects from the Quarry;

(c)   engaged or caused to be engaged, or in carrying out work, influenced or directed, Ryan Anthony Messenger (Mr Messenger) as a Leading Hand at the Quarry;

(d)   owned, managed and/or controlled an item of mobile earth-moving plant, being a tracked hydraulic excavator known as a ‘Caterpillar Model 345C Excavator’ (Excavator);

(e)   used the Excavator to carry out work including digging, excavating, lifting, rock-breaking and moving earth and material (Work); and

(f)   carried out the Work in various areas of the Quarry, including in the quarry pit, on the quarry face and on benches, pads, roads and ramps (Work Areas).

3 At all material times the Quarry was a ‘mining workplace’, within the meaning of that term in the WHS Act.

4   On 9 September 2014, Mr Messenger was operating the Excavator at the Quarry.

5   At about 8.00am on 9 September 2014, Mr Messenger was operating the Excavator on a bench at the top of a high wall face on the North side of the Quarry. At this location there was a vertical drop from the top of the high wall face to the bench below of approximately 12 metres.

6   Mr Messenger was using the Excavator’s bucket to pick up large rocks and drop them over the high wall face onto the bench below (Task).

7   While performing the Task, Mr Messenger had a large rock weighing approximately 2.92 tonnes in the Excavator’s bucket. Mr Messenger swung the Excavator around, with the Excavator’s boom almost fully extended, in order to drop the rock over the high wall face onto the bench below. While performing this manoeuvre the Excavator overturned onto its cabin and onto another large rock which penetrated the cabin, causing the cabin door and cabin structure to be crushed.

8   Mr Messenger was wearing his seatbelt at the time, with the cabin door closed. The large rock which penetrated the cabin caused fatal crush injuries to Mr Messenger.

The Duty

9 The Defendant had a duty under section 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of Mr Messenger while he was using the Excavator to carry our Work in the Work Areas of the Quarry (Duty).

The Risk

10   Mr Messenger was exposed to a risk of death or serious injury, including a crush injury, from the Excavator overturning while he was carrying out the Work in the Work Areas of the Quarry (Risk).

Particulars of the acts or omissions in failing, so far as is reasonably practicable, to eliminate or otherwise minimise the Risk

11   The Defendant failed to ensure, so far as was reasonably practicable, the provision and maintenance of safe plant, and in particular, failed to ensure that the Excavator was fitted with an adequate operator protective structure such as a ‘Roll-Over Protective Structure’ (ROPS); and/or

12   The Defendant failed to ensure, so far as was reasonably practicable, that a safe system of work was provided for the operation of the Excavator. In particular, the Defendant failed to;

(a)   adequately risk assess the potential for the Excavator to overturn when carrying out Work in the Work Areas; and/or

(b)   develop, implement and enforce an adequate work procedure for operating the Excavator, which specified:

(i)   that prior to commencing work, an assessment be undertaken to identify any potential for the Excavator to overturn; and/or

(ii)   a requirement to undertake planning, selection of plant and sequencing of work to eliminate or minimise the risk of the Excavator overturning; and/or

(iii)   the measures that the operator was to adopt to eliminate or minimise the risk of the Excavator overturning; and/or

(iv)   that

(A)   if the Excavator was not fitted with an adequate operator protective structure, such as a ROPS; and

(B)   in circumstances where there was a potential for the Excavator to overturn;

work should not be undertaken; and/or

(c)   provide adequate information, instruction and training to Excavator operators with respect to the matters set out in 12(b)(1) - (iv) above.

13   As a result of the Defendant’s failure to comply with its Duty, Mr Messenger was placed at risk of death or serious injury. That risk was manifested by the fatal injuries sustained by Mr Messenger when the Excavator overturned at the Quarry on 9 September 2014.”

35. Senior Counsel for the prosecutor characterised the particulars in par 11 of the Amended Summons as the “plant charge” and the particulars in par 12 as the “systems charge”. Those expressions will be adopted as a convenient shorthand in this judgment.

Authority to Bring Proceedings

36. A certificate pursuant to s 233A of the WHS Act (PX 2, Tab 1) establishes that the prosecutor has authority to bring these proceedings.

Structure of the Defendant

37. The defendant was incorporated on 26 July 2000. An organisational chart of the defendant (PX 2, Tab 3) shows that the officer immediately responsible to the Board of Directors was Mr Alex Badior, who was the Quarry (Production) Manager. Two senior employees reported to Mr Badior. Mr Neil Canavan was the Operations Manager and Mr Brian Russell was the Quarry Supervisor.

38. The deceased Mr Messenger was a Leading Hand who reported to Mr Russell. Below Mr Messenger on the organisational chart were a number of Plant Operators, including Mr Danny Bridges, Mr Terry Black, Mr Tom Guy and Mr Paul Henderson, all of whom gave evidence.

39. Mr Duane Harrison was the Work Health and Safety and Human Resources Manager for the Hunter Group of Companies (Hunter Group). In the organisational structure he reported to Mr Badior. Mr Nav Pun was the Business Strategist for the Hunter Group, and he too reported to Mr Badior. Both gave evidence.

40. The defendant used a number of contractors on site. One of those was Premiair Drill & Blast (Premiair). Mr John Gillespie, a Driller employed by Premiair, was on site. He saw the excavator roll over from a distance. He gave evidence.

Mine Operator

41. The defendant was the nominated mine operator of the Karuah Quarry pursuant to s 22 of the Mine Health and Safety Act 2004 (NSW) (MHS Act).

Layout of the Quarry

42. The layout of the quarry is best understood by consideration of the aerial photograph tendered as PX 9. North is towards the top of the photograph and south is towards the bottom. On the western side of the quarry is the stockpile area and the crusher. To the south of that area, and below the photograph, is the entry to the quarry, the office and weighbridge. The quarry floor is in the centre of the photograph. To the east of the quarry floor are a number of benches marked with their relative levels. These benches have been formed where rock has been blasted and extracted. The drilling rig operated by Mr Gillespie is marked near the southeast corner of the quarry floor. The area where Mr Messenger was operating the excavator is towards the northern side of the quarry. The dark markings on the photograph are shadows, simply being an artefact of the time of day at which the aerial photograph was taken. Contour lines have been superimposed on the photograph. It can be seen that to the immediate south of the area where the excavator was working, the contour lines are close together, indicating a steep drop off. The surveyor engaged by the prosecutor has marked not only the contour lines but the position of the excavator after the accident.

43. To the north of the area of the accident is marked a “pad”. On the day of the accident this area was a road. A level pad was only formed after the accident so that heavy cranes could position themselves safely above the excavator in order to lift it from its fallen position. To the west of the area where Mr Messenger was working is marked a trench. Evidence given by Mr Russell was to the effect that one of the duties allocated to Mr Messenger on the day was to take the excavator to the trench to perform work. Between the area marked as “pad” and the area marked as “trench”, there appears a red triangle which is a surveyor’s survey station. It was in this approximate area that Mr Russell had directed Mr Messenger to build a bund across the road.

44. The red dotted line marked as “track” was the access road leading from the south western part of the quarry up to the north and around to the area marked “pad”.

45. A road down to the quarry floor can be seen to the west of the floor in the area where there are two survey stations marked by red triangles. This was the route taken by Mr Russell and Mr Messenger when they drove past the drill rig and up towards the northern end of the bench RL 78. That evidence will be discussed below.

46. Finally, the position of “Ryan Messenger’s ute” is marked to the north of the “pad”. Evidence, to be discussed below, indicates that Mr Messenger did not park the ute there before he took the excavator down onto the rocky slope. The ute was moved there later by other workers. That evidence shows that at the time the accident occurred, Mr Messenger’s ute had been left down in the area of the trench.

Caterpillar 345C Excavator (CAT 345C)

47. Documents were tendered regarding the excavator which Mr Messenger was operating at the time of the accident. It was purchased by the defendant on 26 June 2008. It came with an Operation and Maintenance Manual (PX 2, Tab 14). Page 27 of that manual contained the following:

“Be careful to avoid any ground condition which could cause the machine to tip. Tipping can occur when you work on hills, on banks, or on slopes. Tipping can also occur when you cross ditches, ridges, or other unexpected obstructions.

When possible, operate the machine up slopes and down slopes. Avoid operating the machine across the slope.

…

Avoid changing the direction of travel on a slope. This could result in tipping or side slipping of the machine.

Bring the load close to the machine before travelling any distances.

Bring the load close to the machine before swinging the load.”

48. The excavator was not supplied with a Roll-Over Protective Structure (ROPS) over and around the operator’s cabin. On 22 January 2014 Mr Canavan conducted a Risk Assessment on the excavator. This document will be referred to in more detail below when dealing with the evidence of Mr Canavan.

49. After the accident the excavator was delivered to O’Neils at Sandgate, pursuant to a notice under s 177 of the WHS Act. It was there photographed and examined. It was later returned to the defendant. The excavator was written off as a result of damage sustained in the accident. It was replaced by a Caterpillar 345D excavator, which was similar to the 345C, but which came with a ROPS already fitted.

ROPS

50. A ROPS is defined in cl 3.19 of ISO 12117-2 as a “system of mainly metallic structural members whose primary purpose is to provide a seated operator, held by a seat restraint system, with reasonable protection in the event of a machine overturning (roll-over)”. This exact definition was used by the prosecutor’s expert Dr Richardson, in his report dated 8 November 2018 (PX 57).

51. In layman’s terms, a ROPS is a strong steel frame around the operator’s cabin on an excavator. If the excavator rolls over, the ROPS is designed to prevent the cabin itself from being deformed and crushed.

52. Other terms of art were FOPS (Falling Object Protective Structure) and TOPS (Tip Over Protective Structure).

Standards and Other Safety Material

53. The prosecutor tendered the Guideline for Mobile and Transportable Equipment for Use in Mines MDG-15 (PX 2, Tab 33). Section 3.13 dealt with “Operator’s Cabin And Protection”. Clause 3.13.1.1 provided that a ROPS should be fitted to all earthmoving equipment in accordance with AS-2294. That Australian Standard will be dealt with in more detail below, but it did not apply to excavators. Clause 3.13.1.2 dealt with the types of vehicles to which a ROPS should be fitted. Excavators are not on the list.

54. Clause 3.13.1.1 contained the following:

“All equipment not covered under the ROPS, FOPS and TOPS standards shall be subject to a risk assessment to determine if the requirements of ROPS, FOPS or TOPS needed to be adopted.”

55. As noted above, a Risk Assessment was conducted by Mr Canavan on 22 January 2014.

56. The prosecutor tendered Australian Standard AS-2294 – 1997. Part 1 of the Standard (PX 2, Tab 36) dealt with “Earth-moving Machinery – Protective Structures”. The scope of the Standard was expressed as follows:

“This Standard specifies the requirements for roll-over protective structures and falling-object protective structures, additional to those given in AS 2294.2, AS 2294.3 and AS 2294.4.

The Standard is intended to apply to operator controlled earth-moving machinery as given in AS 2294.2 and AS 2294.3 and where the design allows for a seated operator.

While there are certain types of earth-moving machinery to which this Standard is not intended to apply, it may be used to provide guidance to the manufacturers of roll-over or falling-object protective structures should it be decided to fit such protection in a particular application.

NOTE: Roll-over protective structures and falling-object protective structures are structures whose primary purpose is to reduce the possibility of an operator who is wearing a seat belt in accordance with AS 2664, ISO 6683 or SAE J386 from being crushed or otherwise injured should the machine roll over or be struck by a falling object.”

57. Clause 3 of the Standard indicated that it was intended “for use by designers and manufacturers of roll-over and falling-object protective structures fitted to earth-moving machinery”. Figures 1.1 to 1.11 inclusive contained pictorial representations of the kind of machinery to which the Standard applied. Excavators were not depicted in those figures.

58. Part 2 of AS 2294 – 1997 (PX 2, Tab 37) dealt with laboratory tests and performance requirements for ROPS. The technical requirements of such tests were the subject of expert evidence in the case, which will be summarised below.

59. The prosecutor also tendered International Standard ISO 12117-2 (the ISO Standard). This international standard did cover excavators. Part 1 dealt with laboratory tests and performance requirements for protective structures of excavators. Part 2 dealt with ROPS for excavators of over six tonnes. Figure 1 in the ISO Standard depicted a machine shaped similar to the excavator involved in the accident.

60. The prosecutor tendered a two-page document headed “WorkCover Obligations of plant operators” (PX 2, Tab 42). That document said that there were legal obligations for those who manage or operate powered mobile plant. Those obligations were to control risks associated with powered mobile plant “including risks from the plant overturning, falling objects, collisions and the like”.

61. The prosecutor tendered a WorkCover Position Paper dated May 2003 entitled “Protective Structures for Earthmoving Equipment” (PX 2, Tab 44). This Position Paper gives a background to understanding an Exemption dealt with below. The Position Paper noted that among the types of earthmoving machinery excluded from provisions under the Occupational Health and Safety Regulation 2001 (NSW), which required the fitting of operator protective structures that conformed with AS 2294, were hydraulic excavators. Under the heading “Conditions”, the Paper said:

“The ‘Exclusions’ outlined above may be applied providing:

(a)   The risks of the earthmoving equipment overturning or objects falling on their operators have been assessed and other means are used to control them. The risk assessment should be in writing and the controls should form part of a documented safe work method statement.

NOTE: The risk of a machine overturning increases as variables increase. These variables are both operational – amount of load, distribution of load, speed of machine, ground conditions (including obstructions), gradient, tyre pressures where relevant, steering angle, resistance of object (including overload) – and design, such as a machine’s centre of gravity, the stiffness of its suspension and its track width.

(b)   …

(c)   …

(d)   Where a risk assessment indicates that it is necessary to fit the machines listed for exclusion with operator protective structures other than those within the scope of AS 4987 and AS 4988, the structure is designed by a suitably qualified engineer having regard to the performance requirements of the relevant part(s) of the Australian Standard AS 2294: 1997. Such a structure would not require deformation testing if the engineer is satisfied that calculations are sufficient to prove its performance.”

62. The prosecutor also tendered certain industry publications. A European document from 2010 headed “Rollover protection excavator cabs become a reality” was tendered (PX 2, Tab 45). It said:

“It’s been a long time coming, but certified ROPS cabs on excavators are a reality following the recent release of a standard, ISO 12117-2: 2008, which sets out laboratory tests and performance requirements for protective structures on excavators weighing between 6 and 50 tonnes.”

63. The article included a photo of a Caterpillar excavator entitled “CAT’s new Rops compliant excavators can be identified by their all-cab”.

64. The prosecutor tendered a Safety Bulletin dated 18 April 2011 from the Queensland Government (PX 2, Tab 46). This referred to the risk of excavators rolling over in mines and quarries and listed recent examples of excavator roll-overs. The document said that common factors contributing to the incidents were poorly constructed and narrow working pads, uncompacted ground, working too close to the edge of benches or ramps, and not applying basic risk management principles, particularly hazard identification. The bulletin made six recommendations to reduce the risk of roll-overs. All of those were administrative controls, rather than engineering controls.

65. The prosecutor tendered a NSW Government Safety Bulletin dated 12 January 2015, entitled “Roll-over Incidents involving load shifting plant” (PX 2, Tab 48). This bulletin drew attention to a number of roll-over incidents in recent years and made seven recommendations to assist in compliance with legislation. They were:

“1.   Identify all work activities on the mine site where load shifting plant is, or is likely to be used.

2.   Where load shifting plant is, or is likely to be used, for each activity determine if there is a potential risk of the plant rolling over or objects falling on the operator.

3.    Where there is an identified risk of load shifting plant rolling over (or objects falling on the operator), risk control measures must be implemented to manage those risks in accordance with ‘hierarchy of risk control’, see clause 36.

4.   So far as is reasonably practicable, in managing the risks (as identified in 3 above), provide, maintain and use operator protective structures on load shifting plant.

5.    Provide for adequate training, supervision and task observation of site practices.

6. Consult with workers (in accordance with Section 47 of the WHS Act) in carrying out the recommendations.

7.   Use a change management process to document all identified changes in the mine safety management plan and communicate those changes to all employees.”

Work Health and Safety Regulation

66. Chapter 3 of the Work Health and Safety Regulation 2011 (NSW) (the Regulation) deals with general risk and workplace management. Part 3.1 deals with managing risks to health and safety. The Part applies to a person conducting a business or undertaking who has a duty under the Regulation to manage risks to health and safety – cl 32. A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety – cl 34. A duty holder, in managing risks to health and safety, must eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable – cl 35.

67. Clause 36 sets out the hierarchy of control measures, referred to in the Safety Bulletin summarised above. Clause 36 applied to the excavator.

“36   Hierarchy of control measures

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

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

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

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

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

(c)  implementing engineering controls.

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

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

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

68. Clause 37 required a duty holder to maintain control measures and cl 38 required a duty holder to review control measures.

69. Clause 217 of the Regulation provided that the person with management or control of earthmoving machinery at a workplace has to ensure that the machinery was not used unless it was securely fitted with a protective structure, which was defined to mean “a structure designed to protect the operator from injury if the machine rolls over…”.

70. However, at the time of the accident, cl 217 did not apply to the excavator because an Exemption existed. The prosecutor tendered the NSW Government Gazette 51/2012 dated 21 December 2012 which contained the Exemption (PX 2, Tab 43). The Exemption was expressed as follows:

“Work Health and Safety Regulation 2011 Exemption (No. 13/12)

1.   Name of Exemption

This Exemption is the Work Health and Safety Regulation 2011, Exemption No. 13/12.

2.    Commencement

This Exemption commences on the date of gazettal in the NSW Government Gazette and has effect until 31 December 2014.

3.   Exemption

This Exemption is made by the WorkCover Authority of New South Wales on its own initiative.

It applies to persons with the management or control of earthmoving machinery at a workplace.

Those persons are exempt from the requirements of Clause 217 of the Regulation, subject to the condition in the Schedule to this Exemption.

4.   Definitions

For the purposes of this Exemption:

Earthmoving machinery has the meaning provided in Clause 5 of the Regulation,

Regulation means the Work Health and Safety Regulation 2011,

__________

SCHEDULE

This Exemption is subject to the following condition:

(a)   nothing in this Exemption affects any other applicable requirements imposed by law in relation to the matters relating to this Exemption, including the other operator protection Clauses 214 and 215 of the Regulation.”

71. Thus at the date of the accident, cl 217 did not apply to the excavator, although cll 214 and 215 did.

72. Clause 214 of the Regulation, which applied to earthmoving machinery, and which was not affected by the Exemption, provided that:

“The person with management or control of powered mobile plant at a workplace must in accordance with Part 3.1, manage risks to health and safety associated with the following:

(a)   the plant overturning …”

73. Part 3.1 has been summarised above, and includes in cl 36, the hierarchy of risk controls.

The Defendant’s Key Employees

74. The defendant set out the duties and responsibilities of Mr Badior, Mr Canavan, Mr Russell and Mr Messenger in a written response to a notice under s 155 of the WHS Act (PX 2, Tab 55).

75. Mr Badior, the Quarry (Production) Manager, was responsible for the operational activities of the defendant and had statutory duties as Production Manager. He had to monitor and implement safety compliance.

76. Mr Canavan, the Operations Manager, was responsible for safely leading the production team, including attending toolbox talks and completing daily drive-around assessments of day-to-day tasks. He responded to identified hazards on site and implemented practical control measures.

77. Mr Russell, the Quarry Supervisor, was required to operate and maintain all items of equipment in the quarry in a safe and efficient manner, supervise employees in their daily tasks, assist management and plant maintenance scheduling, and attend toolbox talks and safety meetings.

78. Mr Messenger, as Leading Hand, was required to operate and maintain all items of equipment in the quarry in a safe and efficient manner, supervise employees in their daily tasks, assist management and plant maintenance scheduling, and attend toolbox talks and safety meetings.

Training of Mr Messenger

79. The employees of the defendant were generally trained and assessed by external trainers. Such training included the trainer making observations of the employee’s operation of equipment, as well as requiring the employee to answer test questions concerning safe operation. Mr Messenger was trained in relation to the operation of the excavator in 2012 and obtained appropriate certification. There was follow-up training. In 2014, one of the questions he correctly answered in an Assessment Record (PX 3, Tab 74) was:

“What is the danger of slewing the load when the turntable is not level?

A.    The machine could overturn as its centre of gravity could move towards the fall-line.”

80. Mr Messenger demonstrated to the assessor his competence in walking the excavator onto a bench, loading a dump truck and tidying the work area. A Knowledge Assessment (PX 3, Tab 76) recorded Mr Messenger providing the following correct answers:

“5.   What do you do to prepare your work area?

Look for dangers, including overhead power, cliff faces, damp trenches.

…

27.    What action do you take if you come across a work area hazard?

Stop work, report hazard.

…

32.   What is the danger of slewing with a load when the turntable is not level?

Could turn over the machine.

…

36.    What are the major hazards and emergency situations that can occur during operations?

Overhead services, underground services, cliff faces, machine fire.

…

39.   How do you increase the reach of the machine without compromising safety?

Cut a bench or build a pad to suit.

…

43.   When working in soft and uneven ground conditions, what precautions must be taken?

Make sure ground is stable and operate at a safe distance.

44.   When travelling up or down a steep slope, what is the preferred direction of travel?

Straight up or straight down.

45.   When travelling with a loaded bucket, how high off the ground should you have the bucket?

As low to the ground as possible.

…

47.   How do you avoid the hazards associated with walking the shovel/digger?

Crowd bucket in, pull dipper arm down close to the ground.”

81. Mr Messenger passed a Practical Skills Assessment on 30 April 2014, conducted by Mr Lee (PX 3, Tab 77).

82. Mr Messenger was awarded a “Statement Of Attainment” for “Conduct civil construction excavator operations” (PX 3, Tab 78).

83. Documents were also tendered to show that Mr Messenger had been trained in the operation of a front-end loader, a rough terrain forklift, a slewing mobile crane, a haul truck, and a skid steer loader.

84. The prosecutor also tendered the training records of Mr Russell, Mr Guy, Mr Black, Mr Canavan, Mr Bridges and Mr Badior.

Mine Safety Management Plan

85. The prosecutor tendered the defendant’s Mine Safety Management Plan (MSMP) dated 29 April 2013 (PX 3, Tab 126). Section 7 of the MSMP dealt with Risk Management. The MSMP set out requirements for hazard identification, Risk Assessment and risk review. At p 1478 of PX 3 the MSMP set out a matrix-style Risk Management Tool. This ranked the likelihood of the occurrence of an event against the consequence or impact of an event. The likelihood was ranked from “almost certain” to “rare” and the consequence was ranked from “catastrophic – death – huge financial loss” to “insignificant – no injury or illness – low financial loss”. Numbers were then allocated in the matrix against the various combinations of likelihood and consequence. This resulted in a risk ranking for a particular event. That numerical ranking was: extreme: 5; significant: 3-4; medium: 2; low: 1. A further table set out the action or responsibility appropriate to each risk ranking. The table was:

Risk Ranking	Action/Responsibility
Extreme 5	Risk is unacceptable – Related work is to stop and full Risk Assessment or a detailed Safe Work Method Statement to be carried out. Senior member of staff to participate.
Significant 3-4	Risk is undesirable. Risk Assessment and/or Safe Work Statement to be reviewed and/or supplemented by appropriate person. Actions to be documented.
Medium 2	Risk is tolerable – Hazards to be controlled as a minimum and documented by employee.
Low 1	Risk is acceptable – Normal safe behaviour and systems of work apply.

WHS System at the Quarry

86. The prosecutor tendered a large volume of material concerning the WHS system at the quarry (PX 4). Included in the material were hazard reports, Job Safety Analyses (JSAs), Safe Work Method Statements (SWMSs), Risk Assessments (RAs) and inductions.

87. Included in the Site Hazard/Risk Register dated 4 June 2014 (PX 4, Tab 134) was consideration of the risk of “Mobile plant equipment tipping, rolling or losing a load due to travelling across uneven, unstable or sloping surfaces”. The risk rating was 5 being “Catastrophic – Possible”. The risk controls were all administrative, including inspecting the stability of ground, consultation with the Quarry Supervisor and Operations Manager, external training, a suitable SWMS and ongoing task observation. The Register suggested that after such risk controls were implemented the risk ranking would be 2 being “Major – Rare”.

88. While the prosecutor tendered a large number of SWMSs, evidence given by employees of the defendant (referred to below) suggests that many of those documents were drafts for review. The final version of any SWMS was required to be discussed with workers at the quarry and signed off by those people who had discussed a particular SWMS. Many of the documents tendered did not have signatures by employees, or were stamped “To Be Reviewed”. For example, a SWMS for the use of the CAT 345C in preparing a road along the top of Bench 5 (PX 4, Tab 151) was signed only by Mr Russell and Mr Badior. A SWMS for the use of a Caterpillar D10 Dozer to form an access ramp down to Bench 2 (PX 4, Tab 152) was signed by Mr Russell and Mr Gould, but was stamped “To Be Reviewed”.

89. There was no SWMS for the task being carried out by Mr Messenger at the time he had his accident. Nor was there a Risk Assessment for that task. The significance, if any, of the absence of such documents is dealt with below in relation to the issues of foreseeability and reasonable practicability.

90. A large volume of the material tendered in relation to the WHS system at the quarry was characterised by the prosecutor in the Tender Bundles as “General”. Included in that material was an email dated 7 March 2014 from Mr Duane Harrison to Mr Badior, Mr Canavan and Mr Russell (PX 4, Tab 167). Mr Harrison drew the attention of those employees to a Safety Alert found on the Victorian Worksafe website. Mr Harrison asked for the recipients of the email to discuss and display the Safety Alert.

91. The Safety Alert, dated February 2014, was headed “Mobile plant overturns”. It reported on an incident in Victoria where a fully loaded articulated dump truck overturned while travelling along a section of sealed road inside a mine. The Alert referred to 30 reported mobile plant overturn incidents in Victoria since January 2010. Three of those related to excavators, although there was no detail about those incidents. The Alert listed factors commonly involved in the overturning incidents, and these included unstable ground conditions and uneven ground.

92. The Alert listed recommended risk control measures. The first was ensuring appropriate safe systems of work are in place and that these are regularly monitored, reviewed, and if necessary, revised. Operators were asked to consider “the availability of the latest operator protective devices (such as reversing cameras etc)”. The risk control measures included appropriate training, the adoption of rules and standards for safe on site road use, communication and ensuring that the surface of any offloading area is appropriate for the vehicle being used. It is to be noted that there is no mention of ROPS in the Safety Alert.

93. The WHS material also included many records of toolbox talks. The crucial toolbox talk was held on 9 September 2014, on the morning of the day of the accident (PX 4, Tab 177). The Quarry Supervisor was noted as Mr Russell, and Mr Messenger was noted as being present. He initialled the document to indicate his presence.

94. There was a “WHS Checklist”, which had a list of topics to be discussed in the meeting. Where a topic was discussed, the box next to the topic was ticked. One of those was “No Go Areas – identified and discussed”. There was no written detail as to where these areas, if any, were.

95. On the second page of the toolbox talk minutes there was an entry which Mr Russell said read as follows:

“Take Ryan tour of quarry to look at bund wall”.

96. This entry was initialled by Mr Russell.

Evidence of Workers at the Quarry

97. In assessing the evidence of the workers at the quarry on the day of the accident, I keep in mind the following:

1. All of the witnesses to the events at the quarry on the day of the accident, bar Mr Gillespie, worked for the defendant.

2. All of the defendant’s employees who gave evidence, except for Mr Canavan who has since retired, still work for the defendant.

3. Some of the witnesses had not been conferenced by the lawyers for the prosecutor.

4. The cross-examination of those witnesses was in effect “friendly fire”, in that there was no attack on the credibility of the defendant’s employees – rather, they were cross-examined to elicit information favourable to the defence case.

98. Nevertheless I formed the impression that all of the witnesses were trying their best to tell the truth. I deal specifically with each witness below.

Evidence of Brian John Russell

99. Mr Russell commenced employment with the defendant in about 1990 or 1991 at the Karuah quarry. After 2013 he was the Quarry Supervisor. He reported directly to Mr Canavan, and also to Mr Badior. Mr Harrison provided work health and safety information to Mr Russell.

100. Mr Messenger as a Leading Hand directly reported to Mr Russell. The Plant Operators reported to Mr Messenger.

101. Mr Russell had himself operated excavators at the quarry, including the CAT 345C. He had been trained by external trainers in relation to the operation of excavators, loaders, dump trucks and water carts.

102. Mr Russell said that it was important to assess and prepare the ground upon which an excavator would work, so as to ensure that the excavator was stable and was working on flat ground. That was important to prevent rolling over or tipping over. Mr Russell was unable to say whether there was a written SWMS or a JSA in relation to the safe operation of excavators at the quarry. The regular operators of the CAT 345C were Mr Messenger, Mr Guy, Mr Bridges, and Mr Russell himself.

103. Mr Russell agreed that Mr Messenger, as a Leading Hand, made decisions and gave directions about the work that employees did at the quarry. Further, he had the ability to determine what tasks he himself would do. He could use his own initiative to do something that he thought needed doing.

104. Mr Russell was taken to a detailed SWMS regarding the use of an excavator to make a road. He was responsible for implementing that SWMS. He said that he told employees that a roll-over was possible on uneven ground, or on sloping ground. He agreed that one hazard of unstable ground was that an excavator could roll over. Another was that it could get bogged. Mr Russell agreed that a hazard involved in an excavator making a road was that it might fall off a bench or be involved in a roll-over.

105. Mr Russell was questioned in relation to the use of an excavator in loading a haul truck. He said that the excavator would make itself a pad so that it could operate on the level in loading a haul truck. Such pads were around a metre and a half to two and half metres high. The operator would build the pad, then build a ramp to drive up onto the pad. Loading of a haul truck would only occur when the excavator was level on top of the pad. There was no SWMS for the operation of excavators loading haul trucks as at the date of the accident. Rather, there were oral instructions.

99. Mr Russell was also questioned about the use of an excavator in pulling up a stockpile. Once again, he said that the operator would build a ramp and a pad and walk the excavator up on top of the flat stockpile, before any scooping or loading was done.

100. Mr Messenger was involved from time to time in using the excavator to break rocks at the quarry. There was no SWMS for this operation. Nor was there a SWMS in relation to using the excavator to do digging work.

101. Mr Russell was then asked about the use of the excavator to dig the trench at the northern end of the quarry. The purpose of the trench was to drain water out of the quarry. The trench had been dug for several months prior to the date of the accident on 9 September 2014. Mr Messenger was one of the workers who had operated the CAT 345C to excavate the trench. The area was blasted, and then the excavators pulled a pad out of the blast material and sat on the level pad to dig the trench out. The material dug out was loaded onto dump trucks. The excavator was working on a level surface during these activities. There was no JSA or SWMS in relation to the work done in excavating the trench.

102. The excavator was required to go from one level of the quarry to another by driving on haul roads. That involved driving the excavator on a sloping road. There was no SWMS at the quarry for the operation of the excavator in driving up haul roads.

103. Mr Russell himself had been operating the CAT 345C on Saturday, 6 September 2014. He was clearing the RL 78 bench, which was the bench immediately beneath the area where the excavator overturned on 9 September 2014. He described the operation as “cleaning up the bench RL 78”. He was not cleaning the face of the highwall with the bucket of the excavator.

104. Mr Russell was asked whether there was any usual procedure for clearing an area above a bench before drilling was done. He said that there was not. He was asked whether there was any procedure to clear rocks to make sure there was nothing that could fall down during the drilling or blasting process and he said that there was not. Mr Russell did no work on the area above the RL 78 bench where he worked on Saturday, 6 September 2014.

105. Mr Russell was taken to photographs of the excavator lying on its side after the accident occurred. He described the area where the excavator had been operating as:

“That’s just an overburden area. It’s a no go area.”

113. Mr Russell could see no reason to clear any large rocks off the area of overburden if there was drilling to be later undertaken down on the RL 78 bench.

114. Mr Russell said that prior to 9 September 2014 he had never been given any documents or other information by the defendant in relation to the purpose of ROPS. He had never raised any concerns with management at the defendant about the need for ROPS on the CAT 345C. He was aware that other mobile plant at the quarry was fitted with ROPS, but it was equipment which came as standard with those machines.

115. Mr Russell was shown the Site Hazard/Risk Register referred to above. He said that he had seen such a document at the quarry. He said that the purpose of a JSA was to “look at the risk and analyse the risk and then to eliminate them”. He said that there was no list of all of the JSAs in operation at the quarry. Mr Russell had no personal knowledge of AS-2294, or of cl 141 of the Occupational Health and Safety Regulation. Mr Russell was taken to several SWMSs and JSAs, and said in general terms that if an employee had been trained in that particular document they would have signed off on the document. If there were no signatures on the document then the document was most likely a draft.

116. Mr Russell was asked about the area where the excavator was operating when the accident occurred. He agreed that it could be described as a “weak area”. He said that the road and the pad above the area was not a weak area. The area where the excavator had its accident was a weak area “because there was overburden and it would have been overburden with clay and decomposed rock there, and it was never ever worked to be compacted, or anything like that”.

117. Mr Russell was asked about the use and construction of bunds or windrows in the quarry. He said that their height had to be three-quarters of the highest wheel height that would use the area. This meant in practical terms that the bund or windrow should be about four and a half feet high.

118. Mr Russell attended toolbox talks every day. It was part of his job to run the toolbox talks. Everyone there had an input on what they were talking about. There were no set topics for a day, it was just what people wanted to talk about. They generally started at 6.30am and ran for 10 or 15 minutes. Sometimes Mr Russell was given written documents by Mr Canavan or Mr Harrison to discuss with the workers who were present. Mr Russell was taken through a large number of records of toolbox talks which pre-dated the accident.

119. Mr Russell said that as the supervisor of Mr Messenger, he had the opportunity to observe him carrying out his work on a day to day basis. He regarded him as a good employee. He regarded him as an obedient employee who did what he was asked to do. He was taken through employee personal development records of Mr Messenger, which Mr Russell had filled out, as assessments of Mr Messenger’s performance. Included in the assessments was Mr Russell stating that Mr Messenger listened to and followed directions. Further, he certified that Mr Messenger had demonstrated a commitment to health and safety. Mr Russell was then taken to the events of 9 September 2014.

120. Mr Russell said that on that morning at the toolbox talk he gave directions to the employees about the work they were supposed to do that day. His direction to Mr Messenger was:

“He was to fuel up the machines that was required to be fuelled up, as he always did. And then he had to go and do some work in the – what is labelled on this thing here as the trench. …He was to go and work on the trench he had to walk up that – up to the pad and build a bund wall on top of the – on the old haul road on the pad.”

121. Mr Russell did not tell Mr Messenger this during the toolbox talk, but did when the two of them were driving around in the ute. They left the workshop area in the ute and drove up through the stockpile area. They then drove down into the quarry. They went to the contractor’s drill rig, stopped there and spoke to the Driller. He told them that he required fuel. Mr Russell told the Driller (Mr Gillespie) that Mr Messenger would be back to fuel him up after they finished their drive around. Mr Russell said he may have told Mr Gillespie that they were going to have a drive around to show Mr Messenger the job that Mr Russell had done on the Saturday.

122. Mr Russell said that they then drove to the far end of the RL 78 bench, where he had cleaned up on the previous Saturday. He did not think they got out of the ute. They then turned around and drove back out. Mr Russell said that Mr Messenger had been away on sick leave for a couple of days plus the weekend, so Mr Russell wanted to let him know what had been done over the weekend. He gave Mr Messenger no directions about any work to be done on that area, saying “there was no work in that area for him to do”. He thought that they stopped for only about a minute or two at the northern end of the quarry. The conversation about the work done on the previous Saturday was held while the two men were sitting in the ute.

123. Mr Russell said that the ute then drove back along the RL 78 bench past the drill rig and came back out of the cut in the quarry to the stockpile area. They then turned right to go up the hill towards the back of the quarry, or the northern end. They went up the haul road and turned around to the right and came to an area called in the evidence “the pad”. Mr Russell said that at the time it was not a pad, but that a pad was later constructed there after the accident, so that cranes could be set up to lift the excavator off the hillside. Mr Russell said:

“We pulled up on the pad area and I told Ryan we needed to build a bund across the end of the pad and then we left there and went back to the workshop.”

124. This was a direction given by Mr Russell to Mr Messenger to build a bund across the road where it ended near the trench. All of these movements were marked on maps and plans during the course of the evidence.

125. Mr Russell said that he had been directed to have a bund built at the end of the road by Mr Badior. There had been a bund there but it had collapsed. He directed Mr Messenger to use the excavator to build the bund. He could not say whether there was a JSA or a SWMS in relation to building the bund.

126. Mr Russell said that in the weeks prior to 9 September 2014 there had been a bit of rain. The two men then drove back to the workshop. Mr Russell went to the office to do some work and then went to the workshop area where the crushing plant was. There was no line of sight from there to the northern end of the quarry. He saw Mr Messenger drive off in the ute to fuel up the machinery. Mr Messenger had his own ute that he drove on the quarry site. The expectation of Mr Russell was that Mr Messenger would go and fuel up the drilling contractor and the other machines, then come down to the crushing plant and do some shovelling, then get the excavator and walk it up to the pad and make the bund. Then he was supposed to walk the excavator back to the trench and clean up in the trench.

127. Later in the morning Mr Russell received a radio message from Mr Black to say that there was an issue with the excavator. This would have been after 8.00am. Mr Russell left the crushing plant and went back to the workshop, took his ute and drove up to where the excavator was. Mr Black was on site. Mr Black told Mr Russell not to go down to Mr Messenger. Mr Russell did go down to the overturned excavator. He saw Mr Messenger crushed inside the cab. He then went back up to the pad area and made some phone calls.

128. Mr Russell said that the gradient of the slope where the excavator was operating was not outside the normal operating range of the CAT 345C. The rocks on the slope were of a size which the excavator could move around. He said that the excavator in normal operations could pick up rocks of that size, but that it would not drop them over the cliff. Normal operations would be to put the rocks on the back of a truck.

129. Mr Russell was asked to look at the written record of the toolbox talk that morning. He explained that his handwriting in relation to Mr Messenger read:

“Take Ryan tour of quarry to look at bund wall.”

130. Mr Russell was then cross-examined by Senior Counsel for the defendant. He agreed that the function of the toolbox talk was for anybody who was there to raise anything, so that any issue that was important to be known for that day was covered before everybody went out to work. He agreed that because Mr Messenger had been away for a few days he took Mr Messenger on a drive around the quarry to ensure that he understood what had been going on, because Mr Messenger was the next most senior person on the site after himself.

131. Mr Russell accepted the proposition that his task was to make sure that the quarry operated in a safe manner. In addition to toolbox talks there were safety meetings, which Mr Harrison attended from time to time. Mr Harrison would raise with him any problems concerning workplace health and safety at the quarry. It was also the practice of Mr Canavan to go around the quarry when it was operating and observe how people were operating the plant.

132. Mr Russell was taken to the record of the toolbox talk on 9 September 2014 and he identified Mr Messenger’s signature underneath his name. Two pages which dealt with the topic of chain of responsibilities were signed by Mr Messenger on 9 September 2014.

133. Mr Russell was asked about blasting and shot firing. He said that there was a drop of about 10 metres from one bench to the next, and that the quarry always placed a bund along the side of a bench to stop people driving off the edge. A bund can be made out of overburden, small rock and waste. When there is drilling to be done, the bund is removed by pushing it over the edge of the bench onto the next bench below. When a shot is to be fired, the quarry is shut down entirely and everybody leaves. After the shot is fired, Mr Russell, Mr Badior and Mr Canavan (if they are present) go back into the quarry to look at the shot to see the quality of the rock obtained. They then make a decision as to what to do. An excavator then goes to the shot rock, builds a pad which is level, makes a ramp and walks up the ramp onto the pad, to load the shot rock onto the haul trucks. The bund in that area is replaced.

134. Bunds were put in place to ensure safety and to prevent people going over the edges of highwalls. The purpose of a bund or windrow is to identify the edge of the face and to stop people from driving over it. Bunds were also used to identify no-go zones. The rule in the quarry was that if an operator saw a bund they should not cross it. This was the reason why, on the day of the accident, Mr Messenger was directed to put a bund across the old haul road. That old road ran towards the trench which was being excavated and finished in a sheer drop. The road had been carved away because the trench was being built. In order to make the quarry safe, it was necessary to build a bund across the end of the road.

135. The benches themselves are horizontal and are made of rock so they do not get boggy. When an excavator is used to push over a bund, the excavator walks along the flat bench, and sits the length of the boom away from the edge. The bund is then pushed by the bucket over the edge. The boom on CAT 345C was about six metres long. This means that the body of the machine is six metres back from the edge of the highwall. When that work is done, there is an exclusion zone below the bench where the bund is being removed. Thus people know not to be in the area below the bench where the work is being done and the bund is being removed.

136. In cross-examination Mr Russell agreed that if there was a bund across a road the rule in the quarry was that you do not cross it. If there was a bund along the side of a road, you do not drive up onto or over it under any circumstances. He agreed that the “absolute rule” is “you don’t cross a bund”. The bund which Mr Russell directed Mr Messenger to construct was to be built across the old haul road to prevent anyone inadvertently driving up there and going over the edge into the trench which was being dug out.

137. In relation to the operation of heavy equipment at the quarry, Mr Russell said that operators always had to have a competency ticket for the machine they were to operate. They were trained in the quarry as to how the machine should be used.

138. Mr Russell said that the CAT 345C was a 45-tonne tracked excavator with a very wide track. It was lower to the ground than ordinary wheeled vehicles and significantly heavier. All those things combined to give it greater stability with a very low centre of gravity. It also had counterweights behind and around the engine.

139. Mr Russell said that the training on site in relation to the practices for operating machinery was not necessarily governed by a JSA, but that everybody had been trained that if the excavator was to get up onto a stockpile, it was necessary to build a ramp. He said that it was a practice and a rule of the quarry that an excavator was not to be used on a slope to do excavation work. It was not to be used on a slope to pick up rocks. It was not to be used on a slope to dig out overburden. He said that if that job was to be done, the operator would need to build a flat pad first and then do what is required to be done. He said that that was “the invariable rule that everybody knew applied”.

140. When Mr Russell told Mr Messenger to build a bund across the end of the road, there was available material nearby which could have been used to build the bund. This was overburden being clay mixed with rock. It was not useable quarry rock. An operator would have walked the excavator down the road, swung around and grabbed the overburden on the side of the road and tipped it across the road to shape a bund. It would have taken an operator about two to three minutes to build a bund of four and half to five feet high. It was not a big job. The material did not need to be compacted, it could just be picked up and dropped in the shape of a bund.

141. Mr Russell was questioned about his description of Mr Messenger as someone who was very obedient as a worker and who usually did exactly what he was asked to do. He said that the job of building the bund, and the job of cleaning up material in the trench, could have been done with the excavator on a flat pad. The freedom given to a Leading Hand at the quarry did not extend to breaching the rules completely. Nor did that freedom extend to driving over a bund or operating in an area that was not flat.

142. Mr Russell said that having given Mr Messenger two particular jobs to do, he would have expected him to complete those two jobs before he did anything else.

143. Mr Russell said that there had never been a practice in the quarry of throwing rocks off a highwall. If rocks had to be removed from a bench, they would not be thrown off. They would be pushed to the edge of the bench and then pushed off. If there was a big rock, it would be picked up and put on a truck.

144. Mr Russell agreed that the area of the quarry where the excavator was operating was no longer in use. The extracted material in that area had been found to be unsaleable because it was not andesite, the rock which the quarry was designed to recover. That area of the quarry was therefore closed off and not used. For that purpose it was bunded off.

145. When the accident occurred, Mr Messenger’s ute was down near the trench. Mr Russell arranged for another quarry worker to move it up to the area of the pad. Mr Guy did this.

146. Mr Russell agreed with the proposition that if Mr Messenger had found any reason to deviate from his two assigned tasks (the bund and the trench) then for safety reasons and so that everyone in the quarry knew what people were doing, it would have been necessary for Mr Messenger to contact Mr Russell as his supervisor. Mr Russell received no communication from Mr Messenger on the morning. There was available radio communication in quarry, which had been used in the past when Mr Messenger contacted Mr Russell to enquire about doing additional or different work.

147. Mr Russell was shown a photograph (PX 8, Tab 2) which depicted the area of the pad and looked down towards the overturned excavator. Mr Russell identified the material at the side of the road as a bund, which indicated that it was not to be crossed and that beyond the bund was a no-go zone. He said that it was between 18 months and two years since there had been any activity on that part of the quarry where the accident occurred. On the photograph he identified where the excavator had driven across the bund, flattening it in the process.

148. It was put to Mr Russell that when he met Mr Black at the pad area after the accident he said to him (speaking of the excavator and Mr Messenger):

“What the fuck was he doing here? He wasn’t supposed to be here.”

149. Mr Russell agreed that he said that and that it was the case that Mr Messenger was not supposed to be in that area.

Evidence of Terry Ross Black

150. Mr Black had been employed by the defendant since 2003 as a Plant Operator. He usually operated a front-end loader. He had done a small amount of work on excavators, but had never operated the CAT 345C.

151. He recalled attending the toolbox talk on the morning on 9 September 2014. Mr Russell gave him a direction regarding the task he had to do that day, which was to clean the screens and put back some concrete blocks that he had moved the day before. He was then to tidy up the roads. This large job involved using the loader to clean up or fix the haul roads within the quarry. He recalled Mr Russell telling Mr Messenger that his job for the day was “to put a bund up the top of the northern end of the quarry”.

306. It is an element of a Category 2 offence that a person is exposed to such a risk. The phrase “exposed to risks” has been interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen – Thiess at [67].

307. It is not necessary that there is an accident or that a person is injured – Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [13]. Nor is it necessary for the prosecutor to prove the particular circumstances in which an incident occurred, in order to establish the existence of the pleaded risk. The risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured or killed, but is the risk arising from the failure to take the reasonably practical steps to avoid injury or death occurring – Nash v Silver City Drilling Pty Limited [2017] NSWCCA 96 at [53].

308. Paragraph 10 of the Amended Summons pleads the risk as follows:

“Mr Messenger was exposed to a risk of death or serious injury, including a crush injury, from the Excavator overturning while he was carrying out the Work in the Work Areas of the Quarry (Risk).”

310. Paragraph 2 of the Amended Summons defines “Work” as using the excavator “to carry out work including digging, excavating, lifting, rock-breaking and moving earth and material”. Paragraph 2 defines “Work Areas” as various areas of the quarry “including in the quarry pit, on the quarry face and on benches, pads, roads and ramps”.

311. As can be seen from the definition of “Work” and “Work Areas” in Annexure A to the Amended Summons, the prosecutor did not confine his case to the particular risk of the excavator overturning while working on the rocky uneven ground at the northern end of the quarry on the date of the accident. The prosecutor also relied upon risks arising from the excavator carrying out other work elsewhere in the quarry. All of the evidence in the case points to the operation of the excavator on the rocky uneven ground, where the accident occurred, as being work which involved a significant risk of serious injury or death. However, the evidence in relation to the existence of a risk, or the degree of risk, involved in everyday work in the quarry was broadly to the effect that it was impossible to overturn an excavator when it was working on a flat pad or surface, or when it was tramming or walking around the quarry to get to the next work task. Because of the stark contrast in the evidence concerning those different situations, I propose to separately consider the risk arising from the operation of the excavator which resulted in the death of Mr Messenger, and the risk arising from other work in the quarry.

312. When Mr Messenger was operating the excavator immediately prior to the accident, the excavator had crossed a bund, and entered into a no-go zone in the quarry. The excavator was working across a slope, and on unstable and boggy ground. The excavator was operating with its boom fully extended and with a large rock in the boom. The excavator was slewing upon its turntable, while operating on a slope, which only added to the instability of the machinery and to the risk of the excavator overturning, as it did.

313. The manner in which the excavator was operated on the day of the accident undoubtedly exposed Mr Messenger to a risk of death or serious injury from the excavator overturning while he was carrying out work at the northern end of the quarry.

314. On the other hand, the everyday operation of the excavator in digging out material, loading blasted material onto trucks, excavating trenches and moving around the quarry, did not expose Mr Messenger to a risk of death or serious injury. The evidence in the case established that the operation of an excavator on level ground, or on a stable elevated pad, or driving directly up or down a haul road, involved no risk of death or serious injury being caused by the excavator overturning. Because such excavators are broad-tracked vehicles, with a low centre of gravity, and counterweights behind the main cabin, they do not overturn if operated properly.

315. This was dramatically demonstrated by the evidence of Mr McCallum, who had tried to tip excavators over to test them. True it is that any excavator can tip over if it is operated on ground that is not level, or is not firm, or if it were to go so close to an edge that it rolled over. The evidence of every witness called by the prosecution established the stability and safety of excavators when operated in an appropriate fashion. The rules of the quarry, and the training of the operators of the excavators in the quarry, meant that excavators did not cross bunds, they did not go into no-go areas, and they were not operated on any ground which was not both level and stable. Further, the absence of any prior problems in operating excavators at the quarry, and the recordings made by inspectors who visited the quarry from time to time over many years, indicated that the excavators in the quarry were always operated within the rules laid down by the defendant, and in accordance with the training provided by the defendant.

316. I find that the everyday operation of excavators in the quarry, by which I mean the operation of excavators on flat surfaces and stable surfaces, in accordance with the guidelines and training, did not pose a risk to workers from excavators overturning.

Reasonably Practicable Measures

317. The prosecutor is required to demonstrate that the particular measures pleaded in the Amended Summons should have been taken to minimise the risk identified – Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [37].

318. Any failure by the defendant does not have to be the sole cause of the creation of the pleaded risk. The relevant question on causation is whether the pleaded act or omission of the defendant was a significant or substantial cause of a worker being exposed to the risk of serious injury or death – Bulga Underground Operations Pty Limited at [127]. A duty holder under s 19(1) of the WHS Act must have a proactive approach to safety issues and the identification of risks within its workplace. It must have a structured and systematic approach to risk management – WorkCover Authority of NSW v Atco Controls Pty Limited at [85]. The question is not – did the duty holder envisage a particular risk – but rather should it have – WorkCover Authority of NSW v Kellogg (Aust).

319. In par 11 of the Amended Summons, the prosecutor alleges that the defendant failed to ensure, so far as was reasonably practicable, the provision and maintenance of safe plant, and in particular, failed to ensure that the excavator was fitted with an adequate ROPS. This paragraph pleads the “plant charge” as referred to by Senior Counsel for the prosecutor.

320. In par 12 of the Amended Summons, the prosecutor pleads that the defendant failed to ensure, so far as was reasonably practicable, that a safe system of work was provided for the operation of the excavator. This paragraph pleads the “systems charge” as referred to by Senior Counsel for the prosecutor. The sub-pars of par 12 will be dealt with further below.

Foreseeability of the Risk

321. In order to assess the practicability of minimising the risk, it is necessary to have regard to the foreseeability of that risk. The definition of “reasonably practicable” in s 18 of the WHS Act alone makes this plain. Among the relevant matters to be taken into account in deciding what is “reasonably practicable” the court is required to look at “the likelihood of the risk concerned occurring” and “what the defendant knows or ought reasonably to know about the risk and ways of eliminating or minimising the risk” – s 18(a) and (c) of the WHS Act.

322. In Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 proceedings were brought against the Authority for a breach of the Occupational Health and Safety Act 1983 (NSW). Roofing work needed to be done on the rail repair plant at Eveleigh. A sub-contractor was engaged to carry out the work. Two workers had to work close to electrical mains. One of the workers died after being electrocuted, when he came into contact with the cables of the sub-main. There was a practice in place for the electricity to be isolated when work was to be done. The mains were not switched off by the employees on the day that the death occurred.

323. The Court of Criminal Appeal held that if a company has sub-contracted another to perform work, and the company has taken reasonable precautions in selecting and training the latter to perform supervisory duties, has in place an effective system of supervision and has taken steps to ensure the system is adhered to, if the sub-contractor does not comply with such procedures, then the company is entitled to a defence – at p 215.

324. In WorkCover Authority of NSW v Kellogg (Aust), Kellogg was charged with a breach of s 15(1) of the Occupational Health and Safety Act 1983. The breach concerned an accident at the defendant’s factory when two workers suffered severe burns when the contents of a cereal cooker exploded, as the employees attempted to remove the lid. Oral evidence showed that the explosion was due to the lid being removed in error.

325. The Industrial Relations Commission of NSW In Court Session held that if a defendant can show that the causes of, or circumstances surrounding, the breach of duty to employee safety were not reasonably foreseeable, it would generally be concluded that it would not have been practicable to take measures to guard against that risk – at p 259.

326. The court held that where the likelihood of the risk occurring and the propensity for harm are high, the higher the duty of an employer to take precautions, even if such precautions are expensive or difficult to implement – at p 260.

327. In WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 the court held:

“If the happening of an event is not reasonably foreseeable, it is not practicable to make provision against it.”

328. Sometimes it will not be practicable to prevent a risk from occurring when a suitably trained and instructed employee departs from usual safety precautions. This may be because it was not reasonably foreseeable that the employee would depart from known procedures, or that the training and instructions provided to the employee were sufficient to ensure that they understood the risk of departing from the procedure. Nevertheless, there is a minimum level of instruction which should be provided to an experienced employee – Genner Constructions Pty Limited at [68].

329. In WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Limited [2001] NSWIRComm 278 a worker stepped out of a truck at a waste management centre to undo the clip of the door of a bin to allow the bin to be emptied into a pit. He slipped and fell into the pit which was approximately 1.8 metres deep. The Industrial Relations Commission of NSW In Court Session said that to determine whether it is reasonably practicable to address a known risk, a balancing exercise must be undertaken. The seriousness of the risk must be measured against the cost and difficulty of implementing the measure to protect against the risk – at [83]. The meaning of the phrase “reasonably practicable” was summarised as:

1. Reasonably practicable means something narrower than physically possible or feasible.

2. What is reasonably practicable is to be judged on the basis of what was known at the relevant time.

3. To determine what is reasonably practicable, it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert the risk – at [87].

330. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore it was not reasonably practicable to guard against such event: WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166 at [129]. The duty of an employer in respect of health and safety requires a proactive approach. The authorities agree that employers are statutorily obligated to ensure the health and safety of not only competent employees and contractors, but also “hasty, careless, inattentive or unreasonable employees and contractors” - at [128].

331. In R v Commercial Industrial Construction Group Pty Limited [2006] VSCA 181, the Court of Appeal of the Supreme Court of Victoria was dealing with a contravention of a duty under the Victorian legislation to “provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health”. It was a contravention of that duty if an employer failed “to provide and maintain plant and systems of work that is so far as is practicable safe and without risks to health”. In pars [49]-[50] the Court of Appeal said:

“49 An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety to deliberate non-compliance with the prescribed safe system of work … An employer’s responsibility for the safety of its workers will not be discharged unless the employer takes ‘an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality’.

50 The events of this day suggest a foolish or deliberate disregard of the company’s safety management system by three of its employees, as a consequence of the company’s failure over time to supervise and monitor its employees sufficiently in the course of the performance of their work and its over-reliance upon the discretion of employees in matters of safety. The conclusion is inescapable that its employees’ non-compliance with its safe system of work was not the consequence of a sudden lapse of judgment by them during these two days. The company’s duty was to ensure that its employees worked in accordance with the safety instructions that they had been given. The company’s submission, that it could have done no more to comply with its statutory obligation to provide a safe system of work, cannot be sustained.”

332. In the present case there was no evidence of a failure by the defendant to supervise and monitor its employees sufficiently in the course of their work. Nor is there evidence that the defendant was over-reliant upon the discretion of its employees in matters of safety. The findings recorded above are to the contrary on both matters.

333. In Baiada Poultry Pty Ltd at [15] the High Court of Australia said that the meaning of “reasonably practicable” does not require employers to take every possible step to guard against injury to employees. The steps that are to be taken in fulfilling that duty are those that are reasonably practicable to achieve the end goal of providing and maintaining a safe place of work.

334. In Orr v Cobar Management Pty Limited, Judge Scotting of this Court dealt with a case involving an underground mine. In the mine there were sumps which were designed to collect waste water. In the waste water there would often be dirt, rocks and plastic fibres. The debris would fall to the bottom of the sump and the water would be pumped out. In some of the sumps there were drain holes with a strainer over the top to prevent debris from coming out. The accident occurred when a worker entered a sump to unblock it. The worker was standing near the drain hole when the drain hole suddenly unblocked and his leg was sucked into the drain hole, dragging him under water. The water pressure was too strong and he could not free himself. The water was above his head as a result of his leg being sucked into the drain hole. The worker died as a result.

335. Judge Scotting held that to consider whether something was a reasonably practical measure to protect health and safety is an objective consideration. Regard must be had to the knowledge possessed by persons generally in the relevant field and should not be based on the actual knowledge of a specific defendant in the circumstances – at [184].

336. His Honour said that s 19 requires knowledge of the risks associated with the business of the employer. Knowledge of such risks requires foreseeability and it would not be practicable to take measures to protect employees from a risk that was not reasonably foreseeable – at [187]. It may not be reasonably practicable to guard against an event which could not have been reasonably foreseen due to the unforeseeable behaviour of a worker who does not follow instructions and procedure – at [193].

Consideration of Element 3

337. In order to find Element 3 established the court must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in pars 11 and/or 12 of the Amended Summons, and that the steps were reasonably practicable.

338. In relation to the pleaded risk, I have already indicated that I will separately consider the risk involved in the excavator working on the rocky uneven slope on the northern end of the quarry on the day of the accident, as opposed to excavators generally doing everyday tasks within the quarry.

Element 3 in respect of the operation of the excavator at the time of the roll-over

339. In relation to the operation of the excavator by Mr Messenger on the day of the accident, the likelihood of the risk occurring was extremely high. The excavator should not have been sitting across the slope. It should not have been operating with the boom fully extended with a large rock in the bucket. It should not have been operating by slewing the turntable, while the excavator was across a slope, with the boom fully extended. However, for reasons given below, I find that it was not reasonably foreseeable to the defendant that Mr Messenger would have operated the excavator in the fashion he did on the day of the accident.

340. So far as the degree of harm is concerned, the harm that might eventuate if the excavator rolled over when operated on the rocky slope, as happened on the day of the accident, was very significant.

341. As for the defendant’s knowledge of the pleaded risk arising from the method of operation of the excavator on the day of the accident, I find that the defendant did not know and could not know that Mr Messenger was going to take the excavator down the slope at the northern end of the quarry and operate it in the fashion which he did. I make this finding because:

1. Mr Messenger was told by Mr Russell to build a bund across the “pad” area above the rocky slope, and then take the excavator down to the trench and continue to excavate it.

2. The toolbox talk minutes record the bunding task as being given by Mr Russell to Mr Messenger.

3. Mr Black corroborated Mr Russell’s evidence that this was the job he allocated, in front of the other workers, at the toolbox talk.

4. Workers at the quarry, even those of the status of Mr Messenger, were expected to perform the tasks allocated to them, and not to perform any extra tasks unless, at the very least, they informed Mr Russell of their proposed task and obtained his agreement to it.

5. Mr Messenger was seen as an obedient employee – both in relation to following directions from his superiors and in relation to observing the safe working practices of the quarry.

6. To enter the rocky slope, Mr Messenger breached a cardinal rule in the quarry, which was that workers were not to cross a bund.

7. There was no particular need for this work to be done on the day, and certainly not in this fashion.

8. Having the excavator working across the slope, rather than facing up the slope, conflicted with the practice of using excavators in the quarry, and conflicted with the training which had been given to Mr Messenger.

9. Slewing the turntable with the boom extended and a weight in the bucket also conflicted with the practice in the quarry and the training which had been given to Mr Messenger.

1. Operating the excavator on unstable and rocky ground, let alone on a slope, conflicted with the practice in the quarry and the training which had been given to Mr Messenger.

2. Dropping rocks off the edge of the highwall conflicted with the practice in the quarry and the training which had been given to Mr Messenger.

3. Operating the excavator above the highwall, without the area below being bunded off to prevent others from going onto the bench, conflicted with the training given to Mr Messenger.

4. Finally, even being on the rocky slope, let alone operating an excavator there, meant that Mr Messenger had entered a no-go zone in the quarry. The reaction of Mr Russell to the excavator being on the rocky slope, as corroborated by Mr Black, was “What the fuck was he doing there?”

342. While a person conducting a business or undertaking must guard against the possibility that an employee may be careless or inadvertent in carrying out a task, there is a line to be drawn between such behaviour and the deliberate and unforeseeable flouting of rules in the workplace and the training given to employees. On all of the visits by inspectors to the quarry, and in the experience of all employees of the quarry who gave evidence, no-one had ever seen an excavator being operated: after driving across a bund; in a no-go zone; across a slope; on unstable ground; or with the boom fully extended near a highwall.

343. All of these matters lead me to conclude that the risk of death or serious injury from the excavator overturning on the day of the accident was not reasonably foreseeable. It follows that it was not reasonably practicable for the defendant to make provision against the happening of such event.

Element 3 in respect of the everyday operation of excavators

344. In relation to the everyday operation of excavators, all of the evidence in the case was that excavators in the quarry, apart from that operated by Mr Messenger on the day of the accident, were engaged in activities of digging or loading, only when operated on flat and stable ground. When moving within the quarry the excavators travelled up and down haul roads which were sloped, but did so only by going directly up or down the slope and not across it, keeping the boom and the bucket as close as possible to the ground. Any dangerous areas in the quarry were bunded off, and this included no-go zones, and the edges of benches and roads. All of the evidence in the case established that excavators operated in this fashion are particularly stable pieces of machinery. The likelihood of the risk of overturn when an excavator was operated in accordance with these precepts was non-existent. There was thus no need for the defendant to take additional steps to ensure safety within the meaning of the Act.

The Plant Charge

345. For these reasons I am not satisfied beyond a reasonable doubt that the defendant failed to ensure, so far as was reasonably practicable, the provision and maintenance of safe plant, and in particular failed to ensure that the excavator was fitted with a ROPS, as alleged in par 11 of the Amended Summons.

The Systems Charge

346. For the same reasons I am not satisfied beyond a reasonable doubt that the defendant failed to ensure, so far as was reasonably practicable, that a safe system of work was provided for the operation of the excavator, as alleged in par 12 of the Amended Summons.

347. Paragraph 12 of the Amended Summons sets out the particulars of the systems charge. Paragraph 12 is divided into three sub-paragraphs.

348. Paragraph 12(a) is an allegation that the defendant failed to “adequately risk assess the potential for the Excavator to overturn when carrying out Work in the Work Areas”. Once again, it is necessary to separately consider the situation of the excavator working on the rocky unstable ground, as opposed to the excavator conducting everyday tasks such as digging and loading.

349. There was no Risk Assessment conducted of the potential for the excavator to overturn when working on the rocky unstable ground, where the accident occurred on 9 September 2014. This was because no-one knew, nor could they have foreseen, that Mr Messenger would have operated the excavator in that location, in the fashion which he did. I have accepted the evidence of Mr Russell, and other employees of the defendant, that none of them saw Mr Messenger operating the excavator on that day, and all of the evidence points to Mr Messenger having been instructed to do other tasks, and not being instructed to be on the rocky slope. This case would be very different if Mr Russell had instructed Mr Messenger to drive the excavator onto the rocky slope and start throwing rocks over the highwall with the boom extended. However, I have rejected the inference which the prosecutor asked the court to draw to that effect, arising from the evidence of Mr Gillespie. In the absence of any such evidence, I find that there was no breach by the defendant in failing to risk assess the potential for the excavator to overturn on the rocky slope, because the defendant did not know of that risk and could not have foreseen that risk.

350. So far as the excavator performing everyday tasks in the quarry, I find that there was an adequate Risk Assessment of those tasks, as part of the general running of the quarry. The risk of an excavator overturning, if operated on soft or boggy ground, or on a slope, was known not only to the senior employees of the defendant, but to each and every operator who gave evidence. All had been adequately trained in the risks. All observed the necessary safe operating procedure for using the excavator in the quarry, which involved carrying out an assessment of the ground before the machine was put into action. There did not have to be a written Risk Assessment created every time an excavator was to perform an everyday task such as digging or loading. The operator did have to look and assess the ground conditions before operating an excavator. The evidence shows that the employees of the defendant were trained to make such assessments, and that they did make them.

351. I am fortified in reaching that conclusion by the observations made from time to time by inspectors who visited the quarry. They never saw a problem with the way in which excavators at the quarry were operated. There was absolutely no evidence of any other event at the quarry involving an excavator which involved a risk of overturn.

352. Paragraph 12(b) alleges that the defendant failed to “develop, implement and enforce an adequate work procedure for operating the Excavator”. Within par 12(b) it is alleged that: the defendant should have made an assessment to identify any potential for the excavator to overturn; it should have required the undertaking of planning and sequencing of work to eliminate or minimise the risk of overturning; it should have specified the measures that the operator was to adopt to eliminate or minimise the risk of the excavator overturning; and if the excavator was not fitted with a ROPS and there was potential for it to overturn, then work should not have been undertaken.

353. The evidence shows that the defendant did have adequate work procedures for assessing any potential for the excavator to overturn, requiring the work to be done in a fashion which eliminated the risk of the excavator overturning. Operators had been taught to adopt measures to eliminate the risk of the excavator overturning. Those measures were observed and enforced within the quarry.

354. Paragraph 12(c) alleged that the defendant failed to provide “adequate information, instruction and training to excavator operators with respect to the matters set out in 12(b)(i)-(iv) above”.

355. I have already made findings of fact concerning the information, instruction and training given to excavator operators. There was ample evidence in the case that the training provided to excavator operators by external third parties was appropriate and adequate training. There was also evidence in the case that each of the ticketed excavator operators had observed and understood that training, and followed it in the operation of excavators in the quarry.

356. I have previously found that the way in which Mr Messenger was operating this excavator on the day was against all instruction and training with which he had been provided. Again, it was not foreseeable to the defendant that Mr Messenger would have acted in this fashion. I find that, in any event, adequate information, instruction and training had been provided to all excavator operators by the defendant and thus there was no failure to ensure a safe system of work in that respect.

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

357. Given my findings above on Element 3, that there was no breach of duty by the defendant, consideration of Element 4 really does not arise. However, I will set out my findings on causation.

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

359. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall.

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

361. For the reasons I have already expressed, my conclusion is that the defendant did not breach its duty by reference to the particulars of breach pleaded in pars 11 and 12 of the Amended Summons. I am also not satisfied beyond reasonable doubt that the prosecutor has proved Element 4.

362. The following submission appears in par 333 of the defendant’s written submissions (MFI 62):

“It is a tragedy that Mr Messenger lost his life. The Court has seen the effect it had on his step-father Mr Russell. No-one can explain why he did what he did. The only matter which is known about the tragedy is that it was done in direct contravention of the work procedures in place at the time; done in direct contravention of the direction given to Mr Messenger less than hour before; done by literally dismantling the safety barrier in place to stop people going into the dangerous area of the quarry; done without the authority to enter such an area; done in circumstances where no one had ever observed any individual simply removing bunds and barriers to enter such areas; and done by a person whose previous work record was excellent.”

363. This submission is accepted.

364. The facts show that the cause of Mr Messenger being exposed to the risk was the unforeseeable actions of Mr Messenger himself. As previously found, the excavator should not have been:

1. driven across a bund;

2. operated in a no-go area;

3. operated on unstable or rocky ground;

4. operated while sitting across the slope;

5. operated with the boom fully extended with a large rock in the bucket;

6. operated by slewing the turntable, while the excavator was sitting across a slope, with the boom fully extended;

7. operated in a fashion contrary to the training and instruction given.

Conclusion and Orders

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

366. The matter will be adjourned to allow the prosecutor to consider its position in relation to any appeal pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

367. My orders are:

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

2. Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

3. The matter will be listed on a date for entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

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Decision last updated: 08 November 2019