Orr v LakeCoal Pty Ltd (In Liquidation) (No. 2) - [2019] NSWDC 360

District Court

New South Wales

Medium Neutral Citation: Orr v LakeCoal Pty Ltd (In Liquidation) (No. 2) [2019] NSWDC 360
Hearing dates: 3, 4 June 2019
Date of orders: 26 July 2019
Decision date: 26 July 2019
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   The elements of the offence set out in the Amended Summons filed on 3 June 2019 have been proved beyond a reasonable doubt.
(2)   The defendant is guilty of the offence.
(3)   The matter will be listed for sentence on a date suitable to the prosecutor.
(4)   Direct the prosecutor to notify the liquidator of the defendant of these orders and to supply to the liquidator a copy of this judgment.

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
   OTHER – vehicles in underground coal mine made contact with roof of roadway, causing fracture of W-strap – broken W-Strap made contact with canopy of vehicle, entering operator cabin space causing serious injury to worker – need for audit of roadways to assess operational roof clearance of vehicle over road surfaces – need to train workers to report damage to roofs or W-Straps
Legislation Cited: Coal Mine Health and Safety Regulation 2006 (NSW)
Corporations Act 2001 (Cth)
Criminal Procedure Act 1986
Evidence Act 1995 (NSW)
Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW)
Work Health and Safety (Mines) Act 2013 (NSW)
Work Health and Safety (Mines) Regulation 2014 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2011 (NSW)
Cases Cited: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37
Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119
Houghton v Arms (2006) 225 CLR 553
Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326
Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117
Orr v LakeCoal Pty Limited [2019] NSWDC 178
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
Royall v The Queen (1991) 172 CLR 378
SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295
Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Thiess Pty Limited v Industrial Court of New South Wales [2010] 78 NSWLR 94
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
Walplan Pty Limited v Wallace (1985) 8 FCR 27
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362
WorkCover Authority of NSW v Atco Controls Pty Limited (1998) 82 IR 80
WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] 135 IR 166
Texts Cited: Ground Engineering, Principles and Practices for Underground Coal Mining
Managing road and vehicle operating areas in underground coal mines - MDG-1009
Mineral Industry Safety and Health Risk Management Guideline - MDG-1010
Mobile Transportable Equipment for Use in Mines – MDG-15
Category: Principal judgment
Parties: Stephen James Orr (Prosecutor)
LakeCoal Pty Ltd (In Liquidation) (Defendant)
Representation:
Counsel:
K Nomchong SC with E Kerkyasharian (Prosecutor)
Solicitors:
Lander & Rogers (Prosecutor)

File Number(s): 2018/23681

table of contents

Introduction

The Elements of the Offence

The Relevant Law

Structure and Sources of this Judgment

Introduction and Evidentiary Matters

The Prosecutor

The Defendant

Mining Operations

Underground Roadways at the Mine

Underground Mobile Plant

The Defendant Engaged Workers

Ben Pedersen

Defendant – A PCBU that owed workers a health and safety duty

Incident – 22 January 2016

The location of the Incident
The Incident
The Mechanism of the Damage to the W-Strap
The Investigation

The Charge

General Principles
The Charge
The Nature of the Primary Duty
Exposure to Risk
Reasonably Practicable Measures

The Safety System at the Mine

Instruction and Training at the Mine

Foreseeability of the Risk

Departmental Guidelines
Industry Publications
The Defendant’s WRACs
Tangible Evidence of Risk
Conclusion as to Foreseeability

Exposure to the Risk

Systems Charge

PMHMP
An audit of the roadways (followed by refusal of access to vehicles and remedial action if required)
Reasonably Practicable
Causal Nexus

Training and Instruction Charge

Reasonably Practicable
Causal Nexus

Conclusion and Orders

Judgment

Introduction

By an Amended Summons filed on 3 June 2019 the prosecutor charged LakeCoal Pty Limited (the defendant) with a breach of the Work Health and Safety Act 2011 (NSW) (the WHS Act). The Amended Summons pleaded that the defendant was a person conducting a business or undertaking at Mannering Colliery at Doyalson in the State of New South Wales, who had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of workers engaged or caused to be engaged by it and/or workers whose activities in carrying out work were influenced or directed by the defendant. In particular, it was pleaded that Mr Benjamin Pedersen, while he was at work in the defendant’s business or undertaking, was exposed to the risk of death or serious injury, contrary to s 32 of the WHS Act.
The defendant is in liquidation. In an earlier judgment I found that the prosecutor did not need leave to continue the prosecution, notwithstanding the liquidation of the defendant – Orr v LakeCoal Pty Limited [2019] NSWDC 178.
The trial was conducted on 3 and 4 June 2019 on an undefended basis. Senior and junior counsel appeared for the prosecutor. There was no appearance for the defendant. The court was informed that the liquidator had been made aware of the hearing and did not wish to appear, but wanted to be kept informed concerning the course of proceedings.
The prosecutor tendered 12 large lever-arch folders of documents, which were marked as PX1 to PX12 inclusive. The prosecutor called the following witnesses: Mr Benjamin Andrew Pedersen, Mr Robbie Taylor, Mr Michael Roughan, Mr Peter Charles McConville and Mr Quinten David McClintock. All of those witnesses gave evidence largely by adopting detailed statements previously taken by investigators.

The Elements of the Offence

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.
Section 32 of the WHS Act provides:

“A person commits a Category 2 offence if;
the person has a health and safety duty, and
(a) the person fails to comply with that duty, and
(b) the failure exposes an individual to a risk of death or serious injury or illness.”

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:

(i) workers engaged by it or workers whose activities are influenced or directed by the defendant;
(ii) 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

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.”

The offence is one of strict liability: s 12A of the WHS Act.
The content of the duty is set out in s 19 of the WHS Act that 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 subs (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.”

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

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.”

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.”

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) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.
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] 78 NSWLR 94 at [67].
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. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.
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.
“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.”

The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak v Lurgi (Aust) Pty Ltd. 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].
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.
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) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Limited (1998) 82 IR 80 at 85; Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 at [32].
A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from 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 Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
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] 135 IR 166 at [129].
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].
The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.
Regard must be had to the scope and objects of the WHS Act: Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the 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 Underground at [130].
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 was is reasonably practicable in the circumstances to which the code relates.
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."

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 Limited v Wallace (1985) 8 FCR 27 at 38; Houghton v Arms (2006) 225 CLR 553 at [37]-[38]. The words “engage in conduct” are defined to include an omission: s 4 of the WHS Act.

Structure and Sources of this Judgment

At the conclusion of the evidence and short oral submissions, the proceedings were adjourned to enable the prosecutor to prepare written submissions. I have been greatly assisted by the written submissions of senior and junior counsel for the prosecutor, and what follows in this judgment is based almost entirely on those written submissions. The detailed references to evidence which follow are the result of the assiduous preparation of senior and junior counsel for the prosecutor, and their instructing solicitors.

Introduction and Evidentiary Matters

The defendant is charged with a breach of s.32 of the WHS Act 2011 (NSW) in respect of a failure to comply with a duty under s 19(1) of the WHS Act on 22 January 2016. The prosecutor moves on the Amended Summons for which leave was granted to file in Court on 3 June 2016.
As at 22 January 2016, the applicable legislation was:

WHS Act;

Work Health and Safety Regulation 2011 (NSW); [1] (WHS Regs)

Work Health and Safety (Mines) Act 2013 (NSW); [2] (Mines Act)

Work Health and Safety (Mines) Regulation 2014 (NSW) [3] (Mines Reg)
1. This Regulation was repealed on 1 September 2017 and was replaced the Work Health and Safety Regulation 2017 (NSW)
2. This Act was re-titled Work Health and Safety (Mines & Petroleum Sites) Act 2013 (NSW) as from 1 February 2016
3. This Regulation was re-titled Work Health and Safety (Mines & Petroleum Sites) Regulation 2013 (NSW) as from 1 February 2016

A Prosecutor’s Chronology [4] and a Summary of Key Individuals [5] were handed up as aide-memoires to assist the Court.
4. MFI1
5. MFI2
The defendant is in liquidation. On 16 May 2019 this Court found that the prosecutor does not need leave to continue the prosecution notwithstanding that fact. [6]
6. Orr v LakeCoal Pty Limited [2019] NSWDC 178
The trial was conducted on an undefended basis. As such, the Court is required to make findings of fact on each relevant issue and determine every legal issue.
Notices were issued pursuant to s 155 of the WHS Act on the defendant and also on third parties. [7]
7. PX4: Tabs 82, 84, 86, 88, 90, 92, 93, 96, 99 and PX5: Tabs 101, 103, 105, 108 and 111
In relation to the Notices issued on the defendant, the responses to them [8] amount to admissions by the defendant within the meaning of s 87 of the Evidence Act 1995 (NSW).
8. PX4: Tabs 83, 85, 87, 94, 95, 97 and PX5: Tabs: 102, 109 and 110
Further, the Court accepts that the evidence of Mr Haberecht, Mr McConville and Mr Walker contains admissions made with authority within the meaning of s 87 of the Evidence Act.
In addition, and significantly, the content of the internal investigation report undertaken by the defendant [9] also contains admissions and to the extent necessary they are relied upon as such by the prosecutor. [10]
9. PX3, Tab 56
10. Schedule A to the Prosecutor’s Submissions sets out the salient admissions in the report.
Three s 155 Notices were issued on LD Operations Pty Ltd (LDO). [11] As was stated in the opening submissions and as is clear from the evidence, LDO and the defendant worked collectively and collaboratively in conducting the operations of the Mannering Colliery (Mine). They also worked within a group of companies known as the LDO Group.
11. PX4: Tab 99 and PX5: Tabs 103 and 105
The responses by LDO to the s 155 Notices issued upon it [12] were included in the evidence as part of the prosecutor’s duty in an ex parte hearing, which includes putting the complete details of the investigation conducted, before the Court. However, where information or documents produced by LDO have been relied upon, the prosecutor has either proved that evidence through witnesses, or has established their provenance though the Affidavit of Adam Battagello dated 6 June 2019 [13] . The prosecutor relies on them as business records. [14]
12. PX4: Tab 100; and PX5: Tabs 104, 106 and 107
13. Affidavit of Adam Robert Battagello, affirmed 6 June 2019
14. Schedule B to the Prosecutor’s Submissions sets out each of the documents which are relied on as business records pursuant to s 69 Evidence Act, 1995 (NSW)

The Prosecutor

The prosecutor, Stephen James Orr, is a government official (investigator) appointed under section 18(2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) (WHSMP Act), and:

is, by virtue of section 18(8) of the WHSMP Act, an inspector for the purposes of the WHS Act; and

has written authorisation of the Regulator under Schedule 2 of the WHS Act, and is thereby authorised under s 230(1)(b) of the WHS Act to bring these proceedings. [15]
15. PX7, Tab 131

The Court finds that the prosecutor is an authorised person to bring these proceedings.

The Defendant

The Court finds that, at all material times, the defendant was a body corporate, with its registered office situated at Ruttleys Road Corner Construction Road, Mannering Park NSW 2259. [16]
16. PX1, Tab 3
At all material times, the defendant and LDO were part of a group of companies known as the LDO Group:

the ultimate holding company and sole shareholder of the defendant as at 22 January 2016 was LDO Coal Pty Ltd; [17]

the former ultimate holding company and current major shareholder of LDO Coal Pty Limited is LDO (the defendant in a related prosecution); [18]

the directors of LDO as at 22 January 2016 included Peter Keith Ross and Peter Haberecht; [19] and

the sole shareholder of LDO is LD Operations Holdings Pty Ltd whose directors as at 22 January 2016 were also Peter Ross and Peter Haberecht. [20]
17. PX1, Tab 3, p 109
18. PX1, Tab 5, p 133
19. PX1, Tab 4, p 123
20. PX1, Tab 6, pp 137, 138

The internal management of the Mine as at 22 January 2016 by the officers and employees of the defendant is set out in an internal managerial chart. [21]
21. PX1, Tab 18. This chart was produced by the Defendant pursuant to a s 155 Notice No: 160314_GD001-01 at PX4, Tab 83, p 1266
As at 22 January 2016, Mr David Walker, the Mining Engineering Manager at the Mine, had a dual reporting function whereby he reported to the Boards of both the defendant and LDO. He reported to LDO through Mr McConnell, who had become the Manager of Mining Operations [22] . Mr McConnell then reported to Peter Ross, Managing Director of LDO [23] . He also reported to the Board of the defendant. [24]
22. PX10, Tab 146, p 3614, q. 72
23. PX10, Tab 146, p 3614, q. 72
24. PX10, Tab 146, p 3614, q. 74
Board members from both the defendant and LDO would frequently attend the Mine and inspect the operations. [25] Mr Walker said that one director in particular, Peter Ross, spent a good deal of time at the Mine, including underground. [26] Another director, Brian Clifford attended the site although less frequently and did not go underground as much. [27] One director of LDO, Mr Peter Haberecht was employed as the Mechanical Engineer at the Mine as at 22 January 2016. [28]
25. PX10, Tab 146, p 3706, q. 827 - 828
26. PX10, Tab 146, p 3706, q. 827 -
27. PX10, Tab 146, p 3706, q. 828
28. PX10, Tab 146, p 3706, q. - 829
Mr Haberecht’s view was that as at 22 January 2016, members of the LDO Board were involved in the operations of the Mine on an almost day to day basis. [29]
29. PX10, Tab 145, p 3507, q. 721
Mr Walker believed, but was somewhat unsure, as to whether the defendant controlled the financial activities of the Mine. [30] He said that he believed the defendant had day to day control of the Mine and was responsible for approving funds for the work done. [31] Even if that was not the case, the fact that he was of that view and that there was some confusion about the fact, shows how intertwined the companies were. Ultimately it is clear that the defendant and LDO operated under the auspices of the LDO Group and acted collaboratively and collectively in operating the Mine.
30. PX10, Tab 146, p 3615 q. 81 - 84
31. PX10, Tab 146, p 3615 q. 82
On 3 October 2018, administrators were appointed to the defendant. [32]
32. Affidavit of Adam Robert Battagello, affirmed 14 May 2019, Annexure ARB-1
On 5 March 2019, the creditors of the defendant (under administration) resolved that the defendant be wound up pursuant to s 439C(c) of the Corporations Act 2001 (Cth). [33]
33. Affidavit of Adam Robert Battagello, affirmed 14 May 2019, Annexure ARB-1
On 12 April 2019, solicitors for the prosecutor confirmed with the Australian Securities and Investments Commission (ASIC) that there was no deregistration process currently on foot for the defendant. [34]
34. Affidavit of Adam Robert Battagello, affirmed 14 May 2019, at [6]

Mining Operations

The charge relates to the Mine (Mannering Colliery), which is a small underground thermal coal mine. It is located at Ruttleys Road, Mannering Park, on the southern side of Lake Macquarie in the State of New South Wales. [35] Mannering Colliery is adjacent to the Chain Valley Colliery, of which the defendant is also the statutory mine operator. [36]
35. PX1, Tab 9, p 144
36. Within the meaning of that term in s 5 of the Mines Reg
The location of the Mine can be seen from an enlarged aerial photograph. [37]
37. PX4, Tab 61
Development of the Mine began in 1960 in conjunction with the construction of the Vales Point Power Station. [38] Operations at the Mine commenced in approximately 1961. [39]
38. PX1, Tab 10, pp 146
39. PX1, Tab 2, p 8
An explanation of the history and development of the Mine is contained in the Annual Review, a document prepared by Mr David Walker, Manager of Mining Engineering, on 30 April 2016. [40]
40. See PX1, Tab 2 in particular: History & Map at p 8; Consolidated Coal Leases at p 10; Mine geology at p 12; Diagram of the mining operations at p 49; and map/diagram showing the inter-relationships with the other mining operations in the area at p 69
On 30 June 2002, the Mine was placed into “care and maintenance” (First Care and Maintenance Phase). [41]
41. PX1, Tab 10, p 145
“Care and maintenance” describes a state of operations at a mine site where there is no activity to mine ore or material but the mine is maintained. Activity at a mine on care and maintenance is generally limited to monitoring the mine and undertaking maintenance activities to ensure that the mine remains in a safe, stable state. The purpose of this is to allow companies to recommence mining if the economic viability of the mine improves in the future.
On 7 August 2002, Centennial Mannering Pty Ltd (Centennial) acquired the relevant coal leases being Consolidated Coal Leases part 707, 719, part 720, 721, part 722 and part Mining Lease 1052 and became the mine holder. Centennial recommenced production in January 2005.
In December 2012, Centennial placed the Mine into “care and maintenance” (Second Care and Maintenance Phase).
On 14 December 2012, a meeting took place in which the Department of Industry & Investment [42] (Department) established conditions for the Second Care & Maintenance Phase. [43] Notably, one condition was a mine inspection plan to ensure that all roadways were maintained in a fit state. [44] On 18 December 2012 the Department confirmed the Care & Maintenance phase and in so doing confirmed that the provisions of the WHS Act & Regs continued to apply to the Mine. [45]
42. as it was then titled
43. PX1, Tab 11
44. PX1, Tab 11, p 147, [6(i)]
45. PX1, Tab 12
On 17 October 2013, Centennial nominated the defendant as the statutory mine operator of the Mine, specifically the abovementioned Consolidated Coal Leases. [46]
46. PX1, Tab 13, p 150
On 2 October 2014, an application to sublease the Mine to the Chain Valley Colliery was approved. The defendant was a named sublessee (together with Fassi Coal Pty Ltd). [47]
47. PX1, Tab 15, p 174-175
Whilst the Mine was in the Second Care and Maintenance Phase, there were limited workers on site. Between May 2014 and December 2015 these included:

the mine manager (mining engineering manager);

two deputies (who were job sharing);

two tradesmen; and

one engineer. [48]
48. PX10, Tab 146, p 3613 q. 65

The work activity during the Second Care and Maintenance Phase was limited to work on Mondays to Fridays, which included one underground shift involving:

inspections of the roof and roadway conditions by a mine deputy; [49]

inspections and maintenance of the pumping systems; and

occasional running of conveyor belts to ensure they were operational and if not, to undertake repairs. [50]
49. A mine “Deputy” has statutory functions including inspections pursuant to cl 10 of Schedule 10 to the Mines Reg
50. PX10, Tab 146, p 3615 q. 86

In late 2014 and through 2015 a number of modifications to the Mine’s planning approval were made including a decision that would permit an underground link road to be progressed between the Mannering Colliery and Chain Valley Colliery (Link Road) as well as to increase the maximum rate of run of the Mine. [51]
51. PX1, Tab 2, p 9
In about December 2015, the defendant made a decision to progress the Link Road. [52]
52. PX1, Tab 2, p 8
The Mine began transitioning from the Second Care and Maintenance Phase in January 2016 with the expectation of commencing full mining operations in about March 2016 (Transition Period). [53]
53. PX10, Tab 145, p 3420, q. 51 & p 3427, q. 112
As early as 4 January 2016, activity at the Mine was described by Mr Peter Haberecht as “very hectic” and as a “very busy time” during which new employees were being engaged and new equipment was being organised. [54] Mr Haberecht gave evidence that between December 2015 and 22 January 2016, personnel and equipment were being brought into the Mine for the purposes of starting up operations, particularly in relation to the Link Road Project. [55]
54. PX10, Tab 145, p 3430 q 129-134
55. T D2 p 111 L 49 to p 112 L 3
The defendant lodged notification of the recommencement of normal mining operations at the Mine in March 2016. [56]
56. PX1, Tab 16
By reason of the above matters, the Court finds that as at 22 January 2016, the defendant:

was the statutory mine operator of the Mine pursuant to s 7A of the Mines Act; [57] and

was engaged in “mining activities” within the meaning of s 7 of the Mines Act during the Transition Period and, in particular as at 22 January 2016, because its activities were:

activities carried out in connection with mining activities at a site within the meaning of s 7(1)(b) of the Mines Act; and/or

activities associating with “making safe” an extraction site within the meaning of s 7(2)(d) of the Mines Act;
57. PX1, Tab 13, p 150

Underground Roadways at the Mine

At all material times, the roadways in the Mine:

were subject to “floor heave” [58] , which is a term used to describe the deformation of the floor of a roadway (upwards towards the roof) due to the stresses being transferred from above, via the walls of the roadway or roof supports;

had floor and roof surfaces that were uneven with varying gradients. [59] On 27 January 2016, the roadway of the Incident site was surveyed. Visualisations of that survey have been prepared by an expert surveyor, Martin Burns, from which the undulating surface of the roadway floor and roof are evident; [60]

could be maintained at design height by removing or cutting out layers of floor material in the roadways. [61]
58. McConville: T D2 p 78 L 10-12; McClintock: T D2 p 89 L 16-24 & p 94 L 39-46; Haberecht: T D2 p 115 L 21-23
59. PX5, Tab 123, pp 1584-1587, PX10, Tab 151, p 4057, q. 22; PX8, Tab 140, p 2637, q. 77
60. PX5, Tab 123, pp 1584-1587
61. See 2013 WRAC at PX2, Tab 42 p 591 – floor heave controlled by removal

As will be dealt with in more detail below, Centennial had developed an Underground Transport Management Plan (UTMP). [62] It had been utilised by the defendant up to and including 22 January 2016. [63] It indicated amongst other things:

The roadways in the Mine through which man transports were to travel had been designed with dimensions of at least 3.5m wide and 1.9m high; [64] and

Main travelling roads are maintained as required; [65]
62. PX2, Tab 38
63. Haberecht: T D2 p 112 L 13-19; see answer to s 155 Notice at PX4, Tab 83, p 1265 Question 1
64. PX2, Tab 38 p 516 and also 509
65. PX2, Tab 38 p 508

At all material times, the roadways in the Mine had a roof support system which included metal, crimped straps which were attached to the roof using roof bolts (W-Straps) [66] and :

the W-Straps were made from steel [67] and were designed to generally conform to the profile of the roadway roof when bolted in place; [68]

the W-Straps had been affixed to the roof of the roadways utilising roof bolts [69] and had been installed at regular intervals of between 1 to 1.5 metres apart, perpendicular to the direction of the roadway; [70] and

many of the W-Straps had been observed to have been damaged in that they had buckled and contorted; [71] or were rusted, broken and damaged by machinery. [72]
66. See, for example, PX4, Tabs 58.62, 58.64 and 58.66
67. PX5, Tab 121, p 1475
68. PX5, Tab 121, p 1475
69. Visible in photographs at PX4, Tabs 58.62, 58.64 and 58.66
70. PX5, Tab 121, p 1475
71. McConville: T D2 p 78 L 21-24;
72. McClintock: T D2 p 94 L 48 to p 95 L 2

Underground Mobile Plant

The vehicles utilised at the Mine during the Second Care and Maintenance Phase included: [73]

an EIMCO 913 Load Haul Dump machine designated as LHD-031 (LHD-031) with a measured height of 1790mm [74] ; and

a PJB Minecruiser Mark 6 personnel transport vehicle designated PJB-2545 (PJB-2545) with a measured height of 1750mm; [75]
73. PX3, Tab 56, p 984
74. PX10, Tab 145, p 3440, q. 202
75. PX10, Tab 145, p 3440, q. 202

The LHD-031 had been inherited from Centennial. [76] Whilst the LHD-031 had a canopy over the operator’s seat, the sides of the cabin were open. [77] This left the operator vulnerable to the intrusion of objects into the operator’s cabin. This is visible in the photograph at PX4, Tab 58.76, where an inspector is sitting in the operator’s seat sideways to the direction of travel, with his face clearly open to the mine roadway.
76. PX4, Tab 87, p 1279
77. See photos at PX4, Tabs 58.73 – 58.76, 58.79
Similarly, the PJB-2545, whilst it had a front windscreen, had no window or guard at the sides of the operator’s cabin. [78] Further, whilst seating areas for the passengers in the rear of the transport are covered by a mesh roof, the aisle or middle of that area is completely open so that anything could protrude into that space. [79]
78. PX4, Tab 58.80
79. PX11 Tabs 147-150
During the Transition Period, on 5 January 2016, LDO purchased a “Driftrunner 5000” man transport vehicle, designation number SMV-003. [80] It was purchased from Cougar Mining Group Pty Ltd (Cougar). [81]
80. SMV stands for Specialised Mine Vehicle.
81. PX1, Tab 21
Mr Haberecht, Manager of Mechanical Engineering, describes himself as involved with the purchase from both “an LDO point of view and from a Lake Coal statutory engineer point of view”. [82]
82. PX10, Tab 145, p 3445, q. 238
Before SMV-003 was delivered to site, Alan Ross, an engineer from LDO, was sent to the Cougar workshop to measure the vehicle. [83] Mr Ross reported to Peter Haberecht that the SMV-003 was 1820mm high. [84] The SMV-003 model was 6200mm in length. [85]
83. PX10, Tab 145, p 3444, q. 235
84. PX10, Tab 145, p 3444, q. 235
85. PX1, Tab 26
The SMV-003 had a similar configuration to the PJB-2545 with a front windscreen and open sides of the operator’s cabin, mesh over the passenger seats but no covering or protection in the passenger aisle space. [86]
86. PX2, Tab 27 – see photos at p 316 and 419

Mr Peter Haberecht directed Cougar to undertake modifications [87] to SMV-003 to ensure the vehicle was no higher than 1800mm. [88]
87. PX10, Tab 145, p 3444, q. 235
88. PX10, Tab 145, p 3440, q. 206; PX1, Tab 21
The modification process was undertaken through various emails sent by Stephen Ord, Equipment Director of the LDO Group to Cougar. However, Mr Ord reported to Mr Haberecht about the modifications agreed with Cougar. [89] Lowering the height of the SMV-003 was achieved by:

fitting low-profile tyres; and

lowering the suspension. [90]
89. PX1, Tab 20, p 263
90. PX1, Tab 23

Cougar undertook a risk assessment but only in relation to the mechanics/ engineering aspects of the SMV-003. [91]
91. PX2, Tab 29
The UTMP required a risk assessment to be carried out before a new type of vehicle, or one that had undergone a major modification, was placed in service. [92]
92. PX2, Tab 38, p 511
Mr Haberecht and Mr McConville signed off on an Introduction to Site form for SMV-003 which indicated that an assessment had been completed. The form had in handwriting reference to a document described as “RA 67 Operational use of JW/PJB Man Transport” (RA 67). [93] Mr McConville’s understanding of this assessment was that it was directed to the mechanical and engineering operation of the vehicle rather than the use of the vehicle at a specific site. [94]
93. PX1, Tab 25, p 300
94. PX9, Tab 144, p 2908, q. 410 -p.2909- 411
Indeed, RA 67 was not a site-specific assessment for SMV-003 at the Mine. In a response to a s 155 Notice seeking production of ‘RA 67,’ the Inspector was advised by Mr David McConnell, Manager of Mine Engineering, that “RA67 was an interim document number for the document referred to in the introduction to site form. The operation risk assessment provided is document number D-14480”. [95] That document was annexed to the response. It was titled the “Operational Use of SMV/PJB Man Transports” at the Chain Valley Colliery (D-14480). Mr Haberecht and Mr McConville confirmed that this was the assessment document used for the SMV-003 at the Mine. [96]
95. PX5, Tab 104, p 1372
96. T D2 p 82 at 30 - 33 and p 116 at 40 - 44
D-14480 had been developed and used many years before, on 23 March 2011 when LDO had conducted a Risk Assessment at the Chain Valley Colliery. Peter Haberecht participated in the assessment. [97] D-14480 identified “Collision with plant or equipment while travelling through the Mine roadways causing personal injury” as having a “low” risk. [98] Existing controls at Chain Valley were identified therein, which the assessment found to be sufficient.
97. PX5, Tab 104, p 1375
98. PX5, Tab 104, p 1391
No similar Risk Assessment was conducted for SMV-003 at the Mine in January 2016. However, it is clear that at least Mr Haberecht ought to have been aware (as a result of his participation in D-14480) that one was desirable, if not necessary.
No other investigation or analysis was undertaken to determine if SMV-003 would have operational road clearance in the roadways being utilised during the Transition Period. [99]
99. T D2 p 83 at 19 - 23
SMV-003 began underground operations at the Mine for the first time on 22 January 2016. [100]
100. PX9, Tab 144, p 2871, q. 70
The defendant also advised that a Juggernaut identified as JUG-01 was also introduced to the Mine on 22 January 2016. [101] However, it had different dimensions and had not been driven past the Incident Site prior to the Incident. [102]
101. See answer to s 155 Notice at Px-4, Tab 87, p 1280
102. PX4, Tab 94, p 1328, Item 3 referencing questions 1 and 3 in the s 155 at Tab 93, p 1326
The evidence discloses a clear reliance (or assumption) by plant operators, the Mine deputy, and even senior officers at the Mine that “someone” would have conducted the appropriate checks before SMV-003 was introduced to the Mine roadways.
Mr Taylor, a mine deputy, said that he did not know but that he imagined that measurements would have been conducted and that he assumed that everything had been checked; [103]
103. PX8, Tab 140, p 2638, q. 81-87
Mr McClintock said that to his knowledge, prior to 22 January 2016, it was “probably” the job of deputies and other managers to ensure that the roadways at the Mine had sufficient clearance for transport to get through. [104]
104. T D2 p 95 at 11 - 14
Mr Haberecht said that he expected deputies at the Mine to have conducted audits including a check of roadway heights, but that he was not aware of any specific instruction being given to do so. [105]
105. T D2 p 112 - 113

The Defendant Engaged Workers

On 10 October 2014, the defendant executed a contract titled “Umbrella Agreement” with LDO under which LDO supplied labour, professional services and workshop services for use in operations at the Mine. [106]
106. PX1, Tab 17 pp 201-233
Pursuant to the Umbrella Agreement, there were general terms and conditions covering all labour and services provided to the defendant. There were also special conditions covering:

Labour support (which would have covered Messrs, McClintock, Roughan and Pedersen); [107]

Professional services (including safety); [108] and

Secondee services which covered Mr McConville, Mr Walker and Mr Haberecht. [109]
107. PX1, Tab 17 pp 234-239
108. PX1, Tab 17 pp 240 - 244
109. PX1, Tab 17 pp 250-258

In relation to workers provided to the defendant by LDO, the Umbrella Agreement stated that:

there must be compliance with Coal Mine Work Health and Safety legislation; and

the site requirements involved compliance with both the defendant’s and LDO’s Health & Safety Management System. [110]

labour supplied by LDO were to work at the Mine (or Chain Valley) at the direction and supervision of the defendant acting through its managing director and the delegates of the managing director. [111]
110. PX1, Tab 17 p 235 at section 2
111. PX1, Tab 17, p 235

In relation to secondees provided to the defendant by LDO, the Umbrella Agreement stated that:

the secondees were to work and carry out their duties in accordance with the directions and policies of defendant; [112] and

while seconded, the defendant was liable for the acts and omissions of secondees in the course of their work and carrying out their duties. [113]
112. PX1, Tab 17, p 252
113. PX1, Tab 17, p 252

LDO supplied thirteen (13) workers (including secondees) to the defendant pursuant to the Umbrella Agreement as at 22 January 2016 [114] including key personnel involved in the Incident, viz:
114. PX1, Tab 17, p 254

David Walker – Manager Mining Engineering, Mannering; who had been working at the mine since about May 2014; [115]
115. PX10, Tab 146, p 3609 q. 29

Peter McConville – Health, Safety, Environment and Community (HSEC) Co-ordinator; Mr McConville had worked for LDO for about nine years leading up to the Incident. [116] He is somewhat unsure of the precise date, but began work at the Mine in about early 2014; [117]
116. PX9, Tab 144, p 2866, q. 30
117. PX9, Tab 144, p 2866, q. 36, 37

Peter Haberecht – Manager Mechanical Engineering. He held that position from about September 2014. [118] He had worked for LDO for nearly 11 years at the time of the Incident; [119]

Mr Quinten McClintock, who began working with a corporation related to the defendant, LD Coal, in November 2013. [120] He moved over to work at the Mine in January 2016; [121]

Mr Michael Roughan, who had started at the Mine as a Leading Hand Electrician about one week prior to the date of the Incident; [122]

Mr Robbie Taylor, a deputy at the Mine. He had worked intermittently at the Mine in the 18 months prior to 22 January 2016, and full time from 4 January 2016. [123] He had worked within the LDO Group for about two and a half years prior to the Incident; [124] and

Mr Benjamin Pedersen.
118. PX10, Tab 145, p 3417, q. 25
119. PX10, Tab 145, p 3416, q. 21
120. PX8, Tab 141, p 2729, q. 34
121. PX8, Tab 141, p 2729, q. 26; Offer of Employment is at PX2, Tab 35, p.492
122. PX8, Tab 143, p2821, q. 50
123. PX8, Tab 140, p 2631, q. 39
124. PX8, Tab 140, 2631 q.35-37

A complete list of LDO personnel working at the Mine in January 2016 can be found at PX4, Tab 100.
The defendant was required to pay LDO for the costs of the employment of each labour employee and each secondee, for which agreed sums were set out in the Umbrella Agreement. [125]
125. PX1, Tab 17, labour services rates: p 235-236; secondees: p 254
A “worker” is defined in s 7 of the WHS Act relevantly as follows:

“(1)   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 subcontractor, or
(c)    an employee of a contractor or subcontractor, or
(d)    an employee of a labour hire company who has been assigned to work in the person's business or undertaking, or …..”

Accordingly, the Court finds that as at 22 January 2016 the defendant engaged, or caused to be engaged, and/or influenced or directed the workers seconded to it by LDO including Mr Pedersen.

Ben Pedersen

Mr Benjamin Pedersen was born on 10 March 1991 and was 25 years of age at the time of the Incident.
Prior to his employment with LDO, Mr Pedersen had worked in mines in various roles since about 2010. [126]
126. PX8, Tab 139, p 2441, at [11-20]
By letter dated 13 January 2016, LDO made an offer of employment to Mr Pedersen to work as an Operator on the Link Road Project at the Mine. [127] Mr Pedersen accepted that offer on 21 January 2016. [128]
127. PX8, Tab 139, p 2442 at [21]
128. PX2, Tab 32, p 480
Prior to executing the contract, on 20 January 2016, Mr Pedersen did a “Contractor Underground Induction Assessment” for the Mine which assessed him as “competent”. [129]
129. PX2, Tab 33, p 487 – second entry from the bottom
Mr Pedersen’s first day of work at the Mine was on 21 January 2016. On that day, he undertook the following induction and training: [130]

he was shown around the surface level of the Mine;

he undertook site inductions which involved some PowerPoint presentations;

he obtained his competency or “tickets” concerning the use of heavy vehicles. This involved him demonstrating his ability to operate the vehicles on the surface. He was not required as part of this process to operate the vehicles underground.
130. PX8, Tab 139, p 2442 at [23]-[27]

On either 21 or 22 January 2016, Mr Pedersen was taken on a walkthrough underground by Mr McConville, together with other employees who were being inducted at the Mine. Mr McConville told Mr Pedersen that the purpose of the walkthrough was to show him the general area where he would be working underground. [131]
131. PX8, Tab 139, p 2442 at [24]
Mr Pedersen was not given any instruction, training or warning regarding the roof height, the minimum dimensions of the underground roadway or that there was a possibility of contact with the roof or plant attached to the roof. [132]
132. PX8, Tab 139, p 2443 at [28]

Defendant – A PCBU that owed workers a health and safety duty

Section 19 of the WHS Act provides:

“19 Primary duty of care
(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
(b)    the provision and maintenance of safe plant and structures, 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
(e)    the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, 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.
…”

By reason of the matters set out above, the Court finds that on 22 January 2016:

the defendant was person conducting a business or undertaking (PCBU), in that it was carrying on mining activities at the Mine;

the defendant caused workers to be engaged and/or influenced or directed the activities of workers in carrying out work at the Mine, including Mr Benjamin Pedersen; and

as such, the defendant had a health and safety duty to those workers, including Mr Benjamin Pedersen, pursuant to s 19 of the WHS Act.

Incident – 22 January 2016

The location of the Incident

The relevant roadways in relation to the Incident are the main travelling roadway identified as Belt C4 roadway, and the secondary egress roadway identified as Main West 2 which in turn has a branch identified as Main North that goes to Longwall 7. These were identified during the hearing on enlarged maps. [133]
133. PX4, Tabs 60 & 61
The Incident occurred near the junction between Belt C4 and Main West 2, leading to Main North towards Longwall 7 (Incident Site). A photograph of the Incident Site taken on Belt C4 looking inbye (towards the workings of the Mine) shows the junction and turn to Main West 2, leading to Main North towards Longwall 7 to the right. It also shows the roof and rib infrastructure including the W-straps. [134]
134. PX3, Tab 58.9
The Incident Site was identified by Messrs McClintock, Roughan and Pedersen, as well as officers of the defendant who pointed it out to the Investigators. [135] The location was also confirmed by the defendant itself in its internal investigation, titled “Incident Report” dated 5 February 2016. [136]
135. See for example, PX7, Tab 132, p 2094 at [66]; PX7, Tab 135, p 2384 at [44] [Flower’s statement]
136. PX3, Tab 56, p 986

The Incident

The shift on 22 January 2016 commenced at 7.00am.
At some time prior to 8.00am, Mr McClintock, an electrician, was directed to take SMV-003 underground to go to Longwall 7 to inspect a malfunctioning pump. Mr McClintock had a conversation in which Mr McConville (the HSEC Co-ordinator at the Mine) told him:

the SMV-003 was going underground for the first time;

the height of the vehicle was 1800mm; and

he was to take care when driving inbye to Longwall 7 and to make sure “it’s okay to go up there”. [137]
137. PX12, Tab 151, p 4055, q. 7

No other information or instructions were given to Mr McClintock.
Mr Roughan, who was to be a passenger in SMV-003, was not aware that this was the first time that SMV-003 was going underground although he did know it was “newish to the mine site”. [138] He was not given any cautions, nor any information about the height or dimensions of SMV-003 nor any instructions as to road clearance. [139]
138. T D1 p 64 L 22
139. T D1 p 64 L 25 - 37
About 8.00am, Mr McClintock and Mr Roughan drove the newly commissioned underground vehicle SMV-003 down the Belt C4 roadway, turning right just after the junction with Main West 2 and then proceeded along Main North to inspect the pump at Longwall 7. [140]
140. PX8, Tab 143, P. 2820, Q 37 and annexure GDMR001 (at p 2838); see also T, D2, p 97, L 15-20 in reference to PX13
Mr McClintock was the driver. Mr Roughan was the passenger. [141]
141. T D1 p 64 L 7
When they came to the Incident Site, Mr McClintock and Mr Roughan heard the roof of SMV-003 make contact with the roof of the roadway. Mr McClintock did not stop to inspect for damage. [142] There was no conversation about the event [143] and neither man reported the contact to any more senior officer of the defendant or LDO. [144]
142. PX8, Tab 141, p 2744, q. 165; PX8, Tab 142, p 2821, q. 123; T D1 p 65 L 46-47
143. T D1 p 65 L 22; T D2 p 98 L 50
144. T D1 p 65, L 20-22; T D2 p 99 L 5-8
Mr McClintock and Mr Roughan then drove to Longwall 7 where they inspected the pump and made a decision to remove the pump for repairs. [145]
145. PX8, Tab 141, p 2730, q. 42
At about 9:30 am, Mr Robbie Taylor, a Deputy Mining Supervisor, [146] drove another underground vehicle, being PJB-2545, inbye to Longwall 7 past the Incident Site. [147] There is no evidence that there was any contact with the roof at the Incident Site. He met with Mr McClintock and Mr Roughan at the pump. After that Mr Taylor and Mr Roughan drove outbye (away from the workings of the Mine) in PJB-2545 along the same route. [148] Again, no contact was made with the roof.
146. PX4, Tab 100, p 1356 (item 1)
147. PX8, Tab 140, p 2633, q. 58, 59; Mr Taylor gives another account of what occurred about the relevant time at PX8, Tab 140, p 2652, q. 216-259
148. PX8, Tab 140, p 2634, q. 59; PX8, Tab 142, p 2806, q. 60-62
Mr McClintock followed, driving the SMV-003. At the Incident Site, Mr McClintock again heard the roof of SMV-003 come into contact with the roof. [149] Again, he did not stop and check for damage. He did not report the contact to Mr Taylor. [150]
149. PX8, Tab 141, p 2738, q. 112
150. PX8, Tab 141, p 2744, q. 165; T D2, p 99 L 5 -8
The evidence of the expert metallurgist, Ms Judy Turnbull (Ms Turnbull), is that the W-Strap had, prior to the two collisions on 22 January 2016, been significantly distorted by previous impacts. The Court is satisfied that Ms Turnbull had the requisite qualifications and expertise [151] to provide the opinions contained in her two reports. [152]
151. PX5, Tab 122 1514-1516
152. PX5, Tabs 121 and 122
According to Ms Turnbull, the second contact made by the SMV-003 damaged the W-Strap so as to break or tear it into two pieces. [153] Ms Turnbull opined that the shape of the W-Strap after the Incident indicated that it could have been hit by a vehicle travelling outbye. [154]
153. PX5, Tab 122, p.1523
154. PX5, Tab 122, p.1521
One piece of the W-Strap then partially hung down into the roadway space and due to a large tear in the hole for the bolt, [155] that piece swivelled around so that broken section was pointing in the direction of traffic travelling inbye.
155. See photo of torn bolt hole at PX3, Tab 58.40 and photo of whole length showing bolt hole at Tab 58.37
This opinion as to the mechanism by which the W-Strap came to be hanging down into the roadway is supported by:

the defendant’s Incident Investigation which noted that “all evidence points to the final damage to the W-strap occurring during this vehicle movement”; [156]

a diagram produced by defendant illustrates the manner in which it determined that the SMV-003, whilst travelling outbye, came into contact with the roof and damaged the W-Strap; [157] and

a photograph of the damaged W-Strap hanging down into the roadway at the Incident Site. [158]
156. PX3, Tab 56, p.985
157. PX3, Tab 56, p.991
158. PX3, Tab 58.18

After Messrs McClintock, Roughan and Taylor had returned to the surface, Mr Taylor directed Mr Pedersen to drive down to the pump at Longwall 7 in the LHD-031 to pick up the pump and transport it out for repairs. [159]
159. Pederson - PX8, Tab 139, p 2443, at [34]; Taylor - PX8, Tab 140, p 2634, q.59
Nothing was said to Mr Pedersen about a new vehicle being introduced into the Mine on that day that was higher than other vehicles that had previously been used. [160]
160. T D1 p.47 at L 21–24

Mr McClintock and Mr Taylor drove down first in the PJB-2545. Mr Pedersen followed driving the LHD-031. They commenced the inbye journey at approximately 1.30pm.
Mr Pedersen was not familiar with the roadway network and was travelling at a low speed in second gear. [161] Mr Pedersen said he was driving approximately in the middle of the roadway, [162] and by this he meant that the vehicle itself was in the middle of the road. [163]
161. PX8, Tab 139, p 2488, q. 79 – 81
162. T D1, p.47 L38–39
163. T D1, p.48 L 9
As noted above, the operator seat of the LHD-031 is perpendicular to the direction of travel and the operator is required to turn his/her head in the direction of travel. [164]
164. PX4, Tab 58.75
Messrs Taylor and McClintock drove the PJB-2545 inbye along Belt C4 then along Main West 2 to the junction at the Main West roadway and waited there (just before the double doors) so as to allow Mr Pedersen to catch up so they could lead him through the doors to Main North. [165] They did not make contact with the roof during that journey.
165. McClintock - PX8, Tab 141, p 2749, q. 209; Taylor - PX8, Tab 140, p 2634, q.59
As he approached the Incident Site, Mr Pedersen was trying to see around the right‑hand bend in the roadway. [166] While undertaking this manoeuvre Mr Pedersen heard the W-Strap make contact with the canopy of the LHD-031. The W-Strap then entered the operator cabin space and pierced the left side of Mr Pedersen’s head. [167] Mr Pedersen said that the W-Strap protruded about halfway into the cabin. [168]
166. PX8, Tab 139, p 2445 at [52]
167. PX8, Tab 139, p 2445 at [53]
168. T D1 p.48 L 23
Mr Pedersen was wearing a hard hat at the time. However, the broken W-Strap flipped his hard hat off [169] and it then made contact near Mr Pedersen’s left ear and resulted in a severe laceration that extended from near his left ear to his left eye. [170]
169. T D1 p.48 L 29
170. See photographs taken at the Hospital of the laceration: PX4 , Tabs 58.83 & 58.84
Despite the severity of the injury, Mr Pedersen maintained consciousness and stopped the LHD-031. He placed pressure on the laceration with his hand to stem the bleeding, exited the vehicle and walked down the roadway in the direction of the PJB-2545 to seek assistance. [171]
171. PX8, Tab 139, p 2445 at [57-61]
Messrs Taylor and McClintock provided first aid and Mr Pedersen was subsequently evacuated from the Mine. [172] He was taken to Wyong Hospital by ambulance. [173]
172. Taylor - PX8, Tab 140, p 2634, q.59, 60; Pederson - PX8, Tab 139, p 2446
173. PX4, Tab 89
The hospital notes state that Mr Pedersen sustained a deep laceration to the “left fronto [sic] temporal region” with “substantial arterial bleeding”. After the wound was cleaned, it was necessary to tie off the temporal artery before placing sutures on the wound. [174] Mr Pedersen was told that there was a significant risk of infection arising out the environment in which the injury occurred and was provided pain medication upon his release. [175]
174. PX4, Tab 91, pp 1304; 1318
175. PX4, Tab 91, p 1305
Mr Pedersen’s stitches were removed in stages. For the first four months after the Incident, he occasionally experienced sharp pains in the area of the cut. [176] On his return to work, he experienced difficulties because of a large amount of swelling. [177] Further, Mr Pedersen said that he still suffers from nerve pains. [178]
176. PX8, Tab 139, p 2448 at [84,85]
177. T D1 p.48 L 37
178. T D1 p.48 L 44
In answer to a request from the Bench, Mr Pedersen showed the Bench the large scar on the left side of his head. [179]
179. T D1 p.49 L 8–10
The injury sustained was clearly serious but could have easily been worse, with the risk of death a genuine possibility.
Mr Pedersen returned to work at the Mine for a short while but eventually resigned.

The Mechanism of the Damage to the W-Strap

Following the Incident, Inspector Bath issued an Improvement Notice to the defendant. Part of that Improvement Notice required the defendant to undertake an investigation as to how the Incident occurred. [180] In undertaking that investigation, the defendant arranged to conduct a survey of the Incident Site area. This involved placing survey markers on the floor and ceiling 50 metres in each direction from the Incident Site. [181]
180. PX5, Tab 115
181. The chainage points for each of these survey markers is at PX4, Tab 70
The surveyor then constructed a diagrammatic depiction of the roadway and inserted a diagram of SMV-003 going both inbye and outbye. [182] On the defendant’s survey depiction, it had the SMV-003 making contact with the roof strap only when travelling outbye (see diagram 9 at PX4, Tab 64, p 1102). However the notation on that survey diagram states, “SMV suspension has not been taken into account”.
182. PX–4, Tab 64, p 1102
In addition, the defendant’s surveyor also inserted a diagram of the LHD–031 going inbye and depicted how the broken roof strap penetrated into the open operator’s canopy. [183]
183. PX–4, Tab 64, p 1104
The defendant’s surveyor also illustrated the manner in which the severed W-Strap rotated on the roof bolt, so that the broken part of the W-Strap (measuring 1.75m) swivelled in the outbye direction. [184]
184. PX4, Tab 64, p 1105
The prosecutor arranged for the survey data gathered by the defendant to be provided to an independent surveyor, Mr Martin Burns who then provided an expert report. [185]
185. PX5, Tab 123
The Court is satisfied that Mr Burns had the requisite qualifications, knowledge and skill to provide the opinions (and diagrams) in his report. [186]
186. Mr Burns’ expertise is set out at PX5, Tab 123, p 1562 and his CV is Appendix B to the report at pp1603 to 1612
Using the survey data provided by the defendant, Mr Burns constructed a two dimensional representation of the roadway in the vicinity of the Incident Site and set out his methodology. [187] Figure 1.0 shows a ‘map’ of the roadway of the Incident Site. Mr Burns divided the road into two sections: Section 1 being the left-hand side of the road (looking inbye) and Section 2 being the right hand side (looking inbye). [188] This was done because it was not known precisely where on the roadway the SMV-003 travelled on 22 January 2016 [189] and therefore various possible scenarios were analysed.
187. PX5, Tab 123, p 1567
188. Similar diagrams were produced by the Defendant’s surveyor – see PX4, Tab 74 showing cross-sections of the roadway
189. PX5, Tab 123, p 1583
Mr Burns then constructed a horizontal view of the roadway using the chainage points provided by the defendant. [190] The roadway clearance was highlighted in yellow in the diagram and it shows the undulating nature of the roof and also the undulating floor surface of the roadway. [191]
190. PX4, Tab 72
191. See Figure 1.1 at PX5, Tab 123, p 1584
Mr Burns then utilised the design specifications for the SMV-003 [192] and created a diagrammatic form of that vehicle and placed it into the roadway clearance in the roadway diagram (Figure 1.1) that he had created for Section 1 travelling inbye (i.e. travelling inbye on the left hand side of the roadway). It is significant to note that, acknowledging that there were a number of different height measurements advanced at different times for SMV-003, Mr Burns has taken the most conservative approach in his calculations, assuming the height of SMV-003 was no more than 1.79 metres when, in reality, there is ample evidence to indicate it was 1.8 metres. [193]
192. PX5, Tab 123,p.1563
193. PX5, Tab 123, p 1565 T [6.5]
Mr Burns was able to show that by reason of the undulations in the roadway surface and also the undulations in the roadway height, when the SMV-003 was travelling over the roadway surface, the rear end of the SMV-003 tilted upwards. In this scenario, Mr Burns calculated that the clearance from the roof of the roadway to the top rear of the vehicle would be 0.12 m. However, Mr Burns noted that these were static measurements and would not take into account any vertical movement (upwards or downwards) of the SMV-003 by reason of any mechanical movement such as spring created by travel. He also noted that the diagram was based on an assumption that the roadway was clear of all debris. [194]
194. PX5, Tab 123, p 1569 at 8.12 – 8.13
Finally, and more significantly, Mr Burns noted that he constructed the diagram on the basis that an undamaged W-Strap would be approximately 0.05 m lower than the height of the roof. On those assumptions, he stated that the top rear of the SMV-003 in this scenario would have cleared an undamaged W-Strap on the roof by 0.07 m. However, Mr Burns stated that if the W-Strap had been deformed and was hanging down lower that 0.07, then there would have been an impact. [195]
195. PX5, Tab 123, p 1569 at 8.14 – 8.16
Mr Burns repeated these calculations (and made diagrams) for three more scenarios being:

SMV-003 traveling outbye in Section 1 (left-hand side of the road): Figure 1.2. [196] In this scenario, Mr Burns opined that there would have been contact with an undamaged W-Strap and therefore if the damaged W-Strap hung lower there would also have been contact; [197]

SMV-003 traveling inbye on Section 2 (right hand side of the road): Figure 1.3. [198] In this scenario, Mr Burns opined that there would have been contact with an undamaged W-Strap (and therefore also with a damaged one); [199]

SMV-003 traveling outbye on Section 2 (right hand side of the road): figure 1.4. [200] Mr Burns found that there would have been no contact with an undamaged W-Strap but the clearance was only 0.015m. As such if there had been deformation of the damaged W-Strap that extended it lower than 15mm, then there would have been an impact. [201]
196. PX5, Tab 123, p 1585
197. PX5, Tab 123, p 1571 at 8.21 – 8.23
198. PX5, Tab 123, p 1586
199. PX5, Tab 123, p 1572 at 8.29- 8.30
200. PX5, Tab 123, p 1587
201. PX5, Tab 123, p 1573 at 8.36-8.37

The expert report of Ms Judy Turnbull does not provide a measurement of the “height” of the deformation of the W-Strap. However, the damage to the W-Strap meant that the W-Strap was quite twisted. By reason of the photographs contained in that report, [202] including the reconstruction photo, [203] the Court is satisfied that the W-Strap was likely to have been extending further into the roadway space than an undamaged one.
202. PX5, Tab 122, p 1532- 1537
203. PX5, Tab 122, p 1528
Further, during the site inspection on 23 March 2016, a photo was taken by Inspector Delmenico where the two pieces of the W-Strap were held up to the roof to show what it would have looked like in situ. [204] This may be of limited assistance given that the pieces of this W-Strap were, by then, further deformed by the impacts of the SMV-003. However, the photos of other damaged W-Straps in the area do illustrate that they protruded more than 0.05m (being the undamaged height) down into the roadway. [205]
204. PX3, Tab 58.30
205. PX3, Tabs 58.19, 58.21, 58.22, 58.23, 58.28 and 58.29.
Ms Turnbull set out, step-by-step, her opinion as to how the damage to the W-Strap occurred - commencing with the loss of the middle roof bolt, then to the multiple impacts from differing vehicles over time and then the final tear and rotation of the W-Strap. [206] Ms Turnbull noted the levels of oxidisation and corrosion on the W-Strap to support her view of multiple impacts over time but was unable to provide any opinion about precisely when those pre-existing impacts occurred. [207] Ms Turnbull opined that the final fracture to the W-Strap was caused by a vehicle travelling outbye, [208] by reason of the final deformation of the W-Strap.
206. PX5, Tab 122 at p 1521 at 8.6
207. PX5, Tab 122 at p 1522 at 8.8 and 8.9
208. PX5, Tab 122 at p 1522 at 8.13
Ms Turnbull concluded:

“The investigation conducted on the W-Strap suggested that it had rotated and was hanging down into the roadway as a result of impact by one or more modern vehicles. The loss of a roof bolt in close proximity to the fracture allowed the section of strap to rotate so that it pointed into the direction of incoming traffic.
The W-Strap had fractured as a result of multiple overloading events. The location and direction of crack propagation across the width of the strap indicated impact from vehicles traveling in a direction out of the mine. The presence of different coloured paint adhering to the strip indicated impact by multiple vehicles. The direction of tearing of the roof bolt hole approximately 1580mm from the fracture indicated a force towards the centre of the road and downwards into the roadway…” [209] (Emphasis added)
209. PX5, Tab 121 at p 1482 at Section 3

A further expert report was obtained from Dr Tim White, forensic mechanical engineer. [210] The Court would be satisfied that Dr White had the requisite qualifications, knowledge and skill to provide the opinions in his report. [211]
210. PX5, Tab 124
211. Dr White’s qualifications are set out at PX5, Tab 124, p 1663-1665 and his CV is Appendix A to the report at pp 1698 to 1706
In his report, Dr White concludes that it was foreseeable that SMV-003 would come into contact with the roof of the roadway in the region of the W-Strap, taking into account:

the height of SMV-003, being higher than other vehicles already in use at the Mine;

the mechanical design of SMV-003, in particular the extent to which the rear of SMV-003 overhung its rear axle, with the rear axle constituting a fulcrum around which the body of SMV-003 could “see-saw”, such that the top edge of its rear end would move upward to a greater degree than a vehicle with a shorter overhang; and

the uneven and undulating nature of the surface of the roadway, which Dr White found would contribute further to the abovementioned “see-saw” effect. [212]
212. PX5, Tab 124, p 1658 at [6] and [7]: see analysis at pp 1670

The Court finds from the expert evidence that the contact occurred because there was less than adequate roadway clearance because of:

the undulations in the roof and floor surfaces of the roadways (caused by, amongst other things, floor heave);

the dimensions of SMV-003, in particular its height and the length of the rear overhang behind the rear axle; and

the pre-existing damage to the W-Strap reduced the height clearance at that point.

The Investigation

At about 4.23pm David Walker, Manager of Mining Engineering, notified Steven Bath, Senior Mine Safety Officer, by telephone of the Incident. [213]
213. PX7, Tab 133, p 2339 at [11]
On 26 January 2016, Inspector Bath issued the defendant with an Improvement Notice pursuant to s.191 of the WHS Act that required the Mine to:

review the introduction to site arrangements for mobile plant with emphasis on dimensional parameters and adequate clearance between plant and roadways; and

investigate the cause and circumstances of the Incident, forwarding all findings and recommended actions to the Inspector and industry Safety and Health Representative. [214]
214. PX5, Tab 115

On 27 January 2016 Inspector Bath conducted an on-site examination of the Incident Site and met with Mr Walker and Mr McConville. Inspector Bath was taken to the Incident Site. He did not take any photos or measurements of the W-Strap, [215] but said it was low enough to be reached by hand. [216] Inspector Bath observed the W-Strap hanging from the roof. He also saw that there was a roof bolt near the left-hand rib and another bolt in the centre of the roadway but the W-Strap had been torn in between.
215. PX7 Tab 113, pp 2340-2341 at p [19] – [21]
216. PX7 Tab 113 p 2341 at [22]
During the course of the inspection, Mr Walker said to Inspector Bath:

“We’ve spoken to electricians who were driving the SMV and they’ve said they scraped the roof in that low area. There’s scratch marks on the roof. It was higher than the other vehicles that normally come along this travel road.” [217]
217. PX7 Tab 113 p 2341 at [28]

Following the Incident, Mr Taylor took photographs [218] of the W-Strap at the scene. [219] At the time of taking these photographs, the W-Strap was in the position in which it was left following the evacuation of Mr Pedersen. [220] Mr Taylor observed what appeared to be hair on the end of the W-Strap pointing into the roadway. [221]
218. T D1 p 58, L 32–33
219. See PX8, Tab 140, p 2714;
220. T D1 p 58, L 35-38
221. T D1 p 58, L 49-50; T D1 p 58 L 49-50
Inspector Bath then issued a Prohibition Notice pursuant s.195 of the WHS Act that required the defendant to:

keep the SMV-003 out of service until it was checked for compliance with specified dimensions;

modify the SMV-003 if it was non-compliant to specified dimensions;

stop using rubber tyred vehicles to transport passengers underground until an audit of the clearance along the Mine’s underground travelling roads is completed;

communicate audit findings to the workforce, Inspector of Mines and Industry Safety and Health Representative;

check all mobile plant used underground in relation to their compliance with maximum tolerable dimensions with results recorded and forwarded to the Inspector of Mines. [222]
222. PX5, tab 116

On 8 February 2016 Inspector Bath conducted interviews with Messrs McClintock, Roughan and Pedersen. He did so pursuant to s 171 of the WHS Act. Transcripts of each of those interviews were adopted by each of the interviewees as a true and accurate record of the interview. [223]
223. T D1 p 45, L 5-8; T D1 p 62, L 25-49; T D2 p 91 L 9-11
On 24 February 2016 the defendant lodged an Incident Notification Form with the Department. [224]
224. PX3, tab 57
From 8 March 2016 Inspector Greg Delmenico took over the investigation and, amongst other things, conducted an Incident Scene Analysis, took photographs, arranged for a survey of the area, seized the W-Strap and arranged for Ms Judy Turnbull, Metallurgist, to undertake an assessment of the damaged W-Strap. In addition, Inspector Delmenico issued s.155 Notices and conducted the remainder of the recorded interviews with personnel from the defendant’s Mine. Persons interviewed by Mr Delmenico included Mr Pedersen, Mr Taylor, Mr McClintock, Mr Roughan, Mr McConville, Mr Haberecht and Mr Walker, all of whom adopted the transcripts produced from those interviews as a true and accurate record of their respective interviews. [225]
225. T D1 p 45, L 5-8; T D1 p 51, L 26-41; T D2 p 91, L 24-28; T D1 p 63, L 1-11; T D2 p 77 L 11-38; T D2 p 111 L 24-44; Affidavit of David William Walker affirmed 5 June 2019 at [3]
In the course of the investigation, Inspector Flowers conducted a reconstruction with the W-Strap at the scene, [226] (one end of which had blood and hair on it). [227] The hair was still visible on the section of W-Strap after it had been seized. [228]
226. PX7, Tab 135, p 2388 at [74] – [76]
227. PX7, Tab 135, p 2412
228. PX3, Tab 58.12 and Tab 58.45
One section of the W-Strap was seized on 23 March 2016 [229] and, together with another section of the W-Strap provided by the defendant’s officers to investigators on 8 April 2016, [230] was sent to Ms Turnbull for metallurgical analysis.
229. PX7, Tab 132, p 2100 at [101]
230. PX7, Tab 132, p 2102 at [112-116]
As part of her analysis, Ms Turnbull performed a reconstruction of the two seized sections of the W-Strap, to demonstrate how the relevant portion of the W-Strap would have looked prior to fracture and that the location of the fracture which would have left a section of the W-Strap pointing into the roadway. [231]
231. PX5, Tab 122, p.1528 [Figure 10 of Turnbull report]
The defendant was charged on 19 January 2018.

The Charge

General Principles

The Prosecution must prove beyond reasonable doubt each of the elements of the offence and any essential or intermediate fact in the reasoning process towards an inference of guilt. [232]
232. SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 at [6] – [7] citing Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579-580 per Dawson J (Mason CJ, Toohey and Gaudron JJ agreeing)

The Court is satisfied that the reasoning and analysis provided by Mr Wagstaffe is sufficient to support that expert opinion. Mr Wagstaffe set out the relevant provisions of the legislation, the relevant provisions of the 2014 and 2015 WRACs and the conservative manner in which he conducted his analysis. [399] Mr Wagstaffe carefully considered the manner in which the Risk would be minimised and concluded:

“Whilst it would still be possible for an incident, such as the one which is the subject of the matter, to have occurred, it is the writer’s opinion that the likelihood would be considered unlikely.” [400]
399. PX6, Tab 125 at pp 1735- 1746
400. PX6, Tab 125 at p 1748

The prosecutor submitted that the development and implementation of a PMHMP would have been a suitable measure to minimise the Risk. In that regard, the prosecutor relied on the expert opinion of Mr Wagstaffe who opined that the PMHMP would have addressed: [401]
401. PX6, Tab 125, pp 1745 - 1747

The setting of minimal vertical roadway dimensions;

Development and implementation of a roadway inspection program and associated TARP;

Undertaking of regular roadway vertical height audits;

Introduction of plant and equipment to site documentation that includes a maximum height of plant specification;

Recognition of floor heave as an issue;

Recognition that the length of mobile plant/equipment is a significant factor in determining if sufficient vertical roadway clearance is available; [402]
402. See PX5, Tab 124, p 1678

Ensuring that no vehicles operated on any underground roadway with less than adequate vertical roof height;

Training and assessment program for workers that requires the operators of mobile plant to:

stop, assess and report any and all incidents involving hitting the roof;

recognise that minor changes to roadway conditions may lead to mobile plant interacting with the mine roof and infrastructure on it;

Mine Management Performance measures whereby specific personnel are charged with ensuring that the requirements of the PMHMP are met on a shift/daily basis.

Mr Wagstaffe stated that with these measures in place, the following engineering controls would have been carried out: [403]
403. PX6, Tab 125, pp 1742 - 1748

The defendant would have conducted an audit of roof height of roadways;

The defendant would have commenced maintenance work, which involved:

Grading or digging out areas of insufficient height;

The repair of any damaged roof level infrastructure, including W-Straps, that protruded into the roadway;

Preventing any mobile plant travelling on roads of insufficient height.

The measures to develop and implement a PMHMP were available prior to 22 January 2016. This is evident from the following:

the fact that the 2014 and 2015 WRACs were conducted establishes that the defendant had the capacity to engage in the work required to develop a PMHMP prior to January 2016;

the 2014 WRAC had proposed that the new Underground Transport Management Plan be implemented by 10 August 2014 [404] and the roadway height audit by 1 August 2014 giving rise to the clear implication that the defendant itself was of the view that such measures could have been done well before 22 January 2016; [405]

The 2015 WRAC had proposed that the PMHMP be in place not long after the Incident occurred (22 February 2016); [406]
404. PX2, Tab 43, p 690
405. PX2, Tab 43, p 693
406. PX3, Tab 45, p 861

It is apparent from the 2014 and 2015 WRACs that the development of the PMHMP proposed in each of those assessments was to be done in-house by personnel already engaged at the Mine. The defendant regarded the managers and employees at the Mine (including Mr McConville) who were listed in the “Actions” schedules [407] at the end of each of the WRACs, as being competent to undertake those tasks. Further, if that be the case, the cost to the defendant would be absorbed by the salary costs already being paid in respect of those persons.
407. 2014 WRAC: PX2 Tab 43 pp 690-694; 2015 WRAC: PX3, Tab 45, pp 858 - 867
Mr Wagstaffe opined that the development and implementation of the PMHMP was a measure that was available prior to 22 January 2016 and based his opinion on the resources available to the defendant in the form of:

the 2014 and 2015 WRACs;

the UTMP;

MDG1009;

the labour, plant and resources which were readily available to defendant to do the audit. [408]
408. PX 6, Tab 125, pp 1749 – 1750

Further, the defendant had access to MDG 1010 which provided detailed guidelines for undertaking a risk assessment in in the minerals industry. [409] MDG 15 had information about operational risk assessments. [410] The defendant also had its own Risk Assessment methodology [411] which would have permitted it to undertake this task, although that is self-evident from the 2013, 2104 and 2015 WRACs.
409. PX6, Tab 126
410. PX6, Tab 127 at p 1967
411. PX4, Tab 75
Even if the defendant had obtained external assistance for the preparation of the PMHMP, it would have been a modest cost. Based on his expertise and experience, Mr Wagstaffe calculated the cost: [412]

of preparing the PMHMP as about $4,800;

of conducting a 1-hour training session for 30 workers at $2,400;

of undertaking an initial roadway height audit at $1,840.
412. PX 6, Tab 125, p 1751

Mr Wagstaffe sets out the basis of those calculations in his report. [413]
413. PX6, Tab 125, pp 1751-1752
The Court notes that Mr Wagstaffe was asked to provide an opinion as to whether some other safe work system would have provided a similar way to address the Risk. Mr Wagstaffe opined that the development of an Underground Transport Hazard Management Plan would have been similar in terms of its effect in addressing the Risk and if developed and implemented effectively, it would have minimised the Risk in the same way as the PMHMP. Again, Mr Wagstaffe set out his reasoning. [414] In addition, Mr Wagstaffe opined that the development of that system was also available as at 22 January 2016 [415] and that the costs were relatively modest. [416]

An audit of the roadways (followed by refusal of access to vehicles and remedial action if required)

414. PX6, Tab 125, at section 3: pp 1753 -1759

415. PX6, Tab 125, pp 1759 - 1762

416. PX6, Tab 125, pp 1762-3

The conduct of a roadway audit (including the exclusion of vehicles prior to such an audit and remedial work if necessary) falls within the implementation phase of the PMHMP (referred to in para 27.1 of the Amended Summons). However, the prosecutor has pleaded the roadway audit as a separate suitable and available measure in addition to or in the alternative to the PMHMP: see para 27.3 of the Amended Summons.
Mr Wagstaffe set out a proposed way of conducting such an audit involving two vehicles following each other down the Mine, with a conduit attached to the first vehicle, which, if struck, would be observed by a passenger in the second vehicle, allowing areas of insufficient height to be marked out and remediated. The images at PX6, Tab 125, p 1750 depict the process. [417]
417. PX6, Tab 125, p 1750
At section 5 of his report, Mr Wagstaffe set out the manner in which the findings of the audit could have been implemented including (but not limited to the following steps:

The nomination of the types of mobile plant and equipment that may be used underground;

Examination of the physical, mechanical and electrical characteristics of each type of mobile plant;

Examination of the physical characteristics of the roadways upon which the various types of mobile plant are to be operated;

Remediation of any areas within the underground roadways of non-conformance prior to mobile plant to being used in that area. That is, digging out areas where there was less than adequate vertical height. [418]
418. PX6, Tab 125, p 1764

Indeed, immediately after the Incident, the defendant implemented an audit and repairs. This plan was set out in the defendant’s Incident Report and is evidenced by a second survey done on 26 March 2016 when such repairs had been done at the Incident Site. [419] The defendant planned the following steps: [420]

Roadway clearance surveys were conducted by using spring-loaded height indicators on all four corners of a man transport vehicle with cross members between the indicators to form an accurate profile of the vehicle operating at the maximal allowable height. Any areas of non-compliance would be repaired in a timely manner and entry to those areas would be barricaded until remediation had occurred. Areas that had not been surveyed were to be barricaded until such time as the survey was completed. This audit was conducted on a systematic, and regular basis, and be entered into the Mine’s work order system;

The “Mannering Colliery Introduction to Site Document” was reviewed to include compliance with specific equipment dimensions as stipulated by the Mine;

Remedial work to improve roadway clearances based on surveys and other reports was to be completed as a priority. [421]
419. PX8, Tab 140, q. 435; PX9, Tab 144, p 1920, q. 501 - 516
420. PX1, Tab 56, p 990
421. PX9, Tab 144, p 1920, q. 501 - 516

The practicability of doing the repairs is evidenced by in the fact that the vehicles and workers with the skills to dig out identified areas, as occurred after the Incident, were present at the Mine. [422] A roadway leveller was in fact kept underground in the time leading up to the Incident. [423] Mr Wagstaffe’s conclusion was that the measures actually taken by the defendant after the Incident would have minimised the risk of contact of the kind that occurred. [424]
422. PX9, Tab 144, p 1920, q. 501 - 504
423. PX4, Tab 87, p 1282, item 32
424. PX6, Tab 124, p.1685 at [122]
The stopping of vehicles from entering an area is a process that occurs in many mines, known as “no-roading”. It can be as simple as putting up tape. It occurred as the scene of the Incident prior to the rectification work being conducted.
Mr Haberecht said that there were more rigorous checks of the actual height of the underground roadways after the Incident. [425] Mr Roughan said that after the Incident, the roads were graded, given certain heights, and repairs were undertaken. [426]
425. T D2 p 117 L 48-50
426. T D1 p 65 L36-41
In SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295 the Court addressed the issue of the use of post-Incident conduct by the defendant at [76]:

“The defendant contended that the Court could not consider any of the steps taken by the defendant after the incident because it was legally compelled to take those steps by the issue of the Improvement Notices. The defendant did not cite any authority for that proposition. The argument can be simply disposed of on the basis that the Improvement Notices did not require the defendant to take the particular steps taken by it after the incident. The Improvement Notices required it to take steps that were reasonably practicable as required by the Act. The defendant chose to take the particular steps that it did. I can see no reason why the taking of the particular steps by the defendant cannot be some evidence of the fact that they were reasonably practicable. When the Court comes to apply section 18 of the Act, that evidence may not be determinative of the issue. At that point, I must be satisfied beyond reasonable doubt that the steps were reasonably practicable to achieve the provision of a safe working environment at the time leading up to the incident and not with the benefit of hindsight.” (Emphasis added)

As such, the prosecutor submits that the Court may take into account the fact that the roadway audit, removal of vehicles and remediation work was done by the defendant after the Incident is evidence that it was an available measure, when it comes to consider s 18 of the WHS Act.
Mr Wagstaffe opined that development of a safe work system incorporating the audit was a measure available prior to 22 January 2016 by reference to a series of factors including the obligations under the legislation and the resources available to the defendant. [427]
427. PX6, Tab 125, p 1766
In terms of the cost associated with the implementation of the audit, Mr Wagstaffe provided a table estimating the costs for both the audits and the development of the safe work system as follows:

Examination of plant and equipment/induction costs at $1,200;

A risk assessment relating to each item of plant at $7,200 per item;

A damage audit of the transition roadways at $1,200;

A roadway height audit at $1,840;

An operational risk assessment for the use of the transition roadways at $7,200;

Documenting the safe work system at $1,920;

Conducting a one-hour training session at $2,400.

However, Mr Wagstaffe also opined that these costs would be part of the Mine’s normal running costs. [428]
428. PX6, Tab 125, p 1768 at para [94]
There had been no audit, no prohibition on access and no repairs prior to 22 January 2016.
Mr Wagstaffe’s expert opinion is that such an operational audit would have assisted in minimising the risk. [429] The prosecutor relies on that expert opinion.
429. PX6, Tab 125, p 1770 at para [103]

Reasonably Practicable

The Court finds that the pleaded measures in para 27 of the Amended Summons were reasonably practicable measures within the meaning of s 18 of the WHS Act.

Causal Nexus

Section 32(c) of the WHS Act requires the prosecutor to prove that the failure to comply with the duty exposed Mr Pedersen (and/or others) to a risk of death or serious injury. 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. [430]
430. Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127], [130].
In this matter, the prosecutor submitted that the Court would be satisfied beyond reasonable doubt that the failure of the defendant to implement the measures pleaded in paras 27.1 and/or 27.3 of the Amended Summons was a significant or substantial cause of workers including Mr Pedersen being exposed to the risk of death or serious injury on 22 January 2016.
The relevant question is not whether the defendant’s failure to implement these measures was the cause of the injury to Mr Pedersen, but rather whether there was a causal relationship between that omission on the part of the defendant and the Risk to which he and others were exposed.
In Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326[431] at [77] – [79] the Court of Criminal Appeal held:

“As earlier stated, the occurrence of an accident or injury is not a precondition to the prosecution of an employer (or other person involved in the management). At the same time, it is necessary, in order to establish a breach, that the particular conduct that was undertaken to cause the risk, or, for that which was not undertaken to prevent the risk, to be particularised so that any defendant is aware of the case which it must meet: Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of NSW & Anor (2006) 66 NSWLR 151; (2006) 154 IR 310; [2006] NSWCA 172; Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339; 159 IR 121; and Kirk v Industrial Relations Commission of New South Wales.
Nevertheless, the test is whether that which was done or not done caused the employer to put the safety of employees at risk. The duty is non-delegable: Kirk v Industrial Relations Commission of New South Wales at [10] and [12]; Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672; [1984] HCA 61.
Thus, the occurrence of an accident is relevant to the liability of an employer in a very limited way. It may be relevant (assuming foresight) to the existence of a risk and the particular accident may be relevant to disclose the seriousness of the consequences of failing to take steps to ameliorate the risk.”

(Emphasis added)

431. Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326 - in the context of appeals in relation to offences under s 8(1) of the Occupational Health and Safety Act 2000 (NSW),

As such, the Court is not required to be satisfied that if the PMHMP and audit had been implemented that Mr Pedersen would not have suffered his injuries. Rather, this is a minimisation of risk case. The Court has to be satisfied that had the PMHMP and/or audit (and remediation) been implemented, it would have minimised the risk of Mr Pedersen and others being exposed to a risk of death or serious injury. Thus the failure to do so, meant that the defendant had not done everything that was reasonably practicable to do, to ensure that it complied with its health and safety duty.
The Court finds beyond reasonable doubt that a reasonably practicable measure that the defendant should have implemented as part of its duty under s 19(1) of the WHS Act to address the pleaded Risk was the development and implementation of a PMHMP and/or an audit and remediation program, and that the defendant failed to do so in breach of its duty, and that that failure exposed Mr Pedersen and other workers to the risk of death or serious injury.

Training and Instruction Charge

The prosecutor has also pleaded that there was a reasonably practicable measure that the defendant could and should have implemented as part of its duty under s 19(1) of the WHS Act to address the pleaded Risk in relation to the Training and Instruction Charge (at para 28 of the Amended Summons):

“28.   The Defendant failed to provide training and instruction to workers that provided, if the vehicle they were driving impacted with the roof infrastructure of an underground roadway in any way, they were required to:
28.1   stop the vehicle (if safe to do so) and note the location;
28.2   assess the roof for any damage including to roof infrastructure such as the W-Straps;
28.3   if there was damage to roof infrastructure which may present as an obstacle or hazard to other workers:
28.3.1   make an immediate report to their supervisor; and
28.3.2   isolate or rope off the area to prevent other vehicles or workers entering; and/or
28.3.3   remain at that site until the supervisor attended, who would then arrange for the repair of the roof infrastructure and arrange for the road surface to be levelled or excavated to provide adequate operational roof clearance;

28.4 if there was no such damage to roof infrastructure, obstacle or hazard arising from the impact with roof, to make a report to their supervisor as soon as practicable but before the end of their shift, after which the supervisor would arrange for an assessment of the roof infrastructure and any necessary repairs of the roof infrastructure and/or arrange for the road surface to be levelled or excavated to provide adequate operational roof clearance.”

These four aspects to the charge may be viewed cumulatively or, in the alterative, individually.
The prosecutor does not submit that the pleaded measures would have eliminated the Risk. The following submissions of the prosecutor address the manner in which the pleaded measures were suitable and available and would, if implemented, have minimised the Risk.
As at 22 January 2016, training and instruction in relation to what to do underground in the case of a collision between an underground vehicle and the roof (including roof infrastructure) was limited. This is evidenced by:

the UTMP contained some instructions about the use of roadways but they were far from adequate to deal with collisions with roof and roof infrastructure and it did not include any of the training and instruction measures pleaded in para 28 of the Amended Summons;

the responses provided by the defendant as to what was in place in relation to this topic;

the analysis of the training modules undertaken by Messrs McClintock, Mr Roughan and Mr Pedersen prior to 22 January 2016;

the simple oral instruction to Mr McClintock to make sure “it’s okay to go up there” [432] ; and

Mr McClintock’s evidence that he thought he was only required to stop if it was a significant collision; and despite being in Mr Taylor’s presence shortly after the collisions, neither Mr McClintock, nor Mr Roughan reported the collisions to him. [433]
432. PX12, Tab 151, p 4055, q. 7
433. T D2, p 93, L 6-26

According to the HSEC Coordinator at the Mine, Mr McConville, training delivered to new workers at the Mine consisted of the following:

a service induction and familiarisation process;

an underground induction process at pit bottom;

general challenge testing on the machines at the Mine, to ensure the workers were capable of operating the vehicles; and

a walk-through along the secondary roads to allow the workers to become familiar with the underground area of the Mine. [434]
434. PX9, Tab 144, p 2928, q. 568

Mr McConville said that he did not deliver training to new workers at the Mine, which specifically addressed how to report issues related to suspected low roof clearance or roof damage within the Mine, or situations in which the vehicles make contact with the roof. [435]
435. PX9, Tab 144, p 2928, q. 568 – 572]
The prosecutor relies on the expert opinion of Mr Wagstaffe who stated that the training and instruction is (as pleaded) would not have eliminated the risk but rather minimised the risk. In this regard Mr Wagstaffe noted that training and instruction are administrative controls and therefore at the lower end of reliability in terms of the hierarchy of risk controls. [436]
436. PX6, Tab 125, p 1772 at [111]
Mr Wagstaffe set out his analysis as to why the proposed training and instruction would have assisted. It was a brief analysis but that is understandable in circumstances where it is self-evident that, had instruction and training of this kind been given to Mr McClintock and Mr Roughan, they would have undertaken the assessment of the W-Strap, and it would have been identified as damaged and presenting a hazard. The road would have been cordoned off, and Mr Pedersen would not have driven down the road until the repairs and remediation work had been done.
Mr Wagstaffe concluded that in those circumstances, “the risk of an incident, similar to that experienced by Mr Pedersen, would be unlikely to occur”. [437]
437. PX6, Tab 125, p 1773 at [113]
In determining that the pleaded training and instruction was available as at 22 January 2016, Mr Wagstaffe provided his opinion based on factors including cl. 39 of the WHS Regulation and cl 104 of the WHS (Mine) Regulation which required the mine operator to ensure that each worker was provided with suitable and adequate information, training and instruction in relation to the following:

hazards associated with the work being carried out by the worker;

the implementation of control measures relating to the work being carried out by the worker; and

the content and implementation of the relevant parts of the safety management system for the Mine. [438]
438. PX6, Tab 125, p 1773 at [114]

In relation to the hazards associated with the work – that is driving underground vehicles, the 2014 and 2015 WRACs both identified the risk of collision.
Mr Wagstaffe also relied on his personal experience that most mine safety management systems require workers to report any and all incidents to their supervisors. [439]
439. PX6, Tab 125, p 1773 at [114] second dot point
The Court finds that the implementation of the training and instructions pleaded in para 28 of the Amended Summons would have been a suitable measure to minimise the Risk.
The prosecutor also submitted that it was an available measure because:

the defendant already had a formal system for training workers and in fact did so in relation to other matters prior to 22 January 2016 in respect of Mr McClintock, Mr Roughan and Mr Pedersen;

such training could have easily been done in-house but if external providers were required, Mr Wagstaffe estimates the cost of conducting a one-hour training session to accommodate training for 30 workers at $2,400; [440] and

the defendant had an informal system of instruction as was evidenced by the walk-through and instructions given by Mr McConville to the newly employed workers, including Mr Pedersen;

the defendant had a system of toolbox talks at which such instruction could have been provided.
440. PX6, Tab 125, p 1774

After the Incident, the Incident Report prepared by the defendant, records the following actions being implemented in relation to workforce communication: [441]
441. PX3, Tab 56, p 982

A “toolbox talk” to the workforce stressing the importance of immediate action required if the roof, rib or any infrastructure was struck by a vehicle, or where roadway clearance had changed for any reason. ‘They were instructed to stop, investigate any damage or clearance reduction, repair if within their ability, demarcate and report;

A “Roads and Other Vehicle Operative Areas” power point presentation in which the potential for interaction with “fixed structures” and “roof” [442] was set out, as were road dimensions; [443] requiring workers to be vigilant in taking note of any detrimental changes to the roadway conditions and reporting it to a mining supervisor; [444] as well as audits, inspections and incidents hazard reporting; [445]
442. PX4, Tab 77, p 1202
443. Ibid at p 1207
444. Ibid at p 1213
445. Ibid at p 1218

A Roads and Other Vehicle Operative Areas Assessment Form was developed on 21 June 2016 which asked a multiple choice question about taking note of any detrimental changes to the roadway conditions; [446]
446. PX4, Tab 79 p 1252

Future machinery training and assessment was planned to capture “the importance of confirming clearances to roof support and infrastructure and taking remedial action when required”.

The “Mannering Colliery Contractor Underground Induction Assessment” was drafted which included the following question: [447]
447. PX4, Tab 80, p 1255

“When operating plant and contact is made with low roof, roof bolt tails, cables, pipes, conveyors and other infrastructure what must you do?
a.   Inspect/report/barricade as required
b.   Not worry it happens all the time
c.   Don’t stop as you may get stuck
d.   All of the above.”

The defendant instituted further training being “The Mannering Colliery Contractor Underground Induction”, being a slideshow presentation that included: [448]
448. PX4, Tab 76

all accidents and incidents must be reported to a supervisor on site; [449]
449. PX4, Tab 76, p.1184

common hazards underground: Beware of the Roof and Ribs where you are positioned at all times; [450]
450. PX4, Tab 76, p.1193

common hazards underground: [451]

“Beware of low roof, roof bolt tails, cables, pipes, conveyors and other infrastructure when operating plant or walking underground. If Contact is made, INSPECT/ REPORT/ BARRICADE as REQUIRED (Note: discuss previous incident)”;

“Inspect roof and rib conditions and take any action necessary to secure them before commencing work”.

The defendant developed a Standard: “Movement of Mobile Plant STD 00014” on 3 May 2016. [452] An Assessment Form for that Standard was developed on 15 March 2016 which asked a true/false question: “Any operator who becomes aware of any changes in roadway conditions that cannot be rectified by him/her shall notify a mining supervisor.” [453]
451. PX4, Tab 76, p.1194
452. PX4, Tab 78 at p 1226, at 6.1.3; not drive under overhead structure where unaware of clearance limits: p 1234 at section 7.1.
453. PX4 Tab 81 p 1256

This post-Incident conduct is not conclusive on the question of the reasonable practicability of the pleaded measures but it is evidence that may be taken into account by the Court in determining that question. [454]
454. Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295 at [76] see above

Reasonably Practicable

By reason of the matters set out above, the Court finds that the pleaded measures in para 27 of the Amended Summons were reasonably practicable measures within the meaning of s 18 of the WHS Act.

Causal Nexus

The Court finds beyond reasonable doubt that a reasonably practicable measure that the defendant should have implemented as part of its duty under s 19(1) of the WHS Act to address the pleaded Risk was the implementation of training and instruction as set out in para 28 of the Amended Summons.
The Court finds beyond reasonable doubt that the defendant failed to implement such training in breach of its duty, and that that failure exposed Mr Pedersen and other workers to the risk of death or serious injury.
The Court finds that the averred training would have minimised the Risk. [455]
455. PX6, Tab 125, pp 1772-1773

Conclusion and Orders

The prosecutor has proven beyond reasonable doubt the essential elements of the offence under s 32 of the WHS Act.
The Court finds the defendant guilty of the offence charged.
The orders of the Court are:

The elements of the offence set out in the Amended Summons filed on 3 June 2019 have been proved beyond a reasonable doubt.

The defendant is guilty of the offence.

The matter will be listed for sentence on a date suitable to the prosecutor.

Direct the prosecutor to notify the liquidator of the defendant of these orders and to supply to the liquidator a copy of this judgment.

**********

Endnotes

Decision last updated: 26 July 2019

Medium Neutral Citation:	Orr v LakeCoal Pty Ltd (In Liquidation) (No. 2) [2019] NSWDC 360
Hearing dates:	3, 4 June 2019
Date of orders:	26 July 2019
Decision date:	26 July 2019
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) The elements of the offence set out in the Amended Summons filed on 3 June 2019 have been proved beyond a reasonable doubt. (2) The defendant is guilty of the offence. (3) The matter will be listed for sentence on a date suitable to the prosecutor. (4) Direct the prosecutor to notify the liquidator of the defendant of these orders and to supply to the liquidator a copy of this judgment.
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 OTHER – vehicles in underground coal mine made contact with roof of roadway, causing fracture of W-strap – broken W-Strap made contact with canopy of vehicle, entering operator cabin space causing serious injury to worker – need for audit of roadways to assess operational roof clearance of vehicle over road surfaces – need to train workers to report damage to roofs or W-Straps
Legislation Cited:	Coal Mine Health and Safety Regulation 2006 (NSW) Corporations Act 2001 (Cth) Criminal Procedure Act 1986 Evidence Act 1995 (NSW) Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) Work Health and Safety (Mines) Act 2013 (NSW) Work Health and Safety (Mines) Regulation 2014 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW)
Cases Cited:	Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 Houghton v Arms (2006) 225 CLR 553 Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326 Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 Orr v LakeCoal Pty Limited [2019] NSWDC 178 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Royall v The Queen (1991) 172 CLR 378 SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295 Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Limited v Industrial Court of New South Wales [2010] 78 NSWLR 94 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Walplan Pty Limited v Wallace (1985) 8 FCR 27 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of NSW v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] 135 IR 166
Texts Cited:	Ground Engineering, Principles and Practices for Underground Coal Mining Managing road and vehicle operating areas in underground coal mines - MDG-1009 Mineral Industry Safety and Health Risk Management Guideline - MDG-1010 Mobile Transportable Equipment for Use in Mines – MDG-15
Category:	Principal judgment
Parties:	Stephen James Orr (Prosecutor) LakeCoal Pty Ltd (In Liquidation) (Defendant)
Representation:	Counsel: K Nomchong SC with E Kerkyasharian (Prosecutor) Solicitors: Lander & Rogers (Prosecutor)
File Number(s):	2018/23681