Robertson v HWE Mining Pty Ltd - [2014] WASC 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ROBERTSON -v- HWE MINING PTY LTD [2014] WASC 11

CORAM: ALLANSON J

HEARD: 26 & 27 JUNE 2013

DELIVERED : 23 JANUARY 2014

FILE NO/S: SJA 1018 of 2013

BETWEEN: ANTHONY ROBERTSON
Appellant
AND
HWE MINING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :NE 654 of 2011

Catchwords:

Criminal law - Appeal against decision - Mines Safety and Inspection Act 1994 (WA) s 9, s 9A - Whether employer so far as was practicable maintained a safe working environment - Meaning of practicable - Whether magistrate had regard to specific matters as required by the Act - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA), sch 1, cl 5(1)(a)
Magistrates Court Act 2004 (WA), s 31
Mines Safety and Inspection Act 1994 (WA), s 9, s 9A
Road Traffic Code 2000 (WA)

Result:

Appeal allowed in part
Matter remitted to Magistrates Court for retrial

Category: B

Representation:

Counsel:

Appellant: Mr G T W Tannin SC & Mr A Shuy
Respondent: Mr M H Zilko SC & Mr P Mendelow

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: K & L Gates

Case(s) referred to in judgment(s):

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Bunnings Forest Products Pty Ltd v Shepherd (Unreported, WASCA, Library No 980235, 5 May 1998)
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Manonai v Burns [2011] WASCA 165
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

ALLANSON J: On 4 September 2008, Adam Michael Sargeant was killed when the vehicle he was driving collided with a haul truck. The collision occurred at the Yandi Mine, where Mr Sargeant was working as an apprentice employed by HWE Mining Pty Ltd.
HWE was charged with one offence under s 9(1) and s 9A(2) of the Mines Safety and Inspection Act 1994 (WA) (the Act) for failing to provide and maintain a safe working environment. The charge was tried in the Perth Magistrates Court between 19 and 28 November 2012. The magistrate found the charge had not been proved. The prosecution now seeks leave to appeal from that decision, on 22 grounds of appeal. For the reasons set out below, I would grant leave on some of those grounds, allow the appeal, and remit the matter for rehearing.

The offence

Section 9 of the Act provides:
(1)An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must ‑
(a)provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer's employees are not exposed to hazards; and
(b)provide such information, instructions and training to and supervision of employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and
(c)consult and cooperate with safety and health representatives, if any, and other employees at the mine where that employer's employees work, regarding occupational safety and health at the mine; and
(d)where it is not practicable to avoid the presence of hazards at the mine, provide employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and
(e)make arrangements for ensuring, so far as is practicable, that ‑
(i)the use, cleaning, maintenance, transportation, and disposal of plant; and
(ii)the use, handling, processing, storage, transportation, and disposal of substances,
at the mine is carried out in such a manner that that employer's employees are not exposed to hazards.
(2)In determining the training required to be provided in accordance with subsection (1)(b), regard must be had to the functions performed by employees and the capacities in which they are employed.
[(3)‑(4)deleted]
(5)The duties imposed under subsection (1) on an employer who is the principal employer at a mine are not taken to be carried out only by the appointment of a manager for the mine.
(6)Notwithstanding subsection (1), any duty imposed under that subsection on an employer who is not the principal employer at the mine applies only in relation to matters over which the employer who is not the principal employer has control, or but for an agreement between the 2 employers, would have had control.
The penalties for breaches of s 9(1) are found in s 9A. Higher penalties are prescribed where an offence occurs in circumstances of gross negligence, and where, by the contravention, the employer causes death or serious harm. Relevantly, by s 9A(2) and (3):
(2)If ‑
(a)an employer ‑
(i)contravenes section 9(1); and
(ii)by the contravention causes the death of, or serious harm to, an employee;
and
(b)…,
the employer commits an offence and is liable to a level 3 penalty.
(3)If -
(a)an employer contravenes section 9(1); and
(b)neither subsection (1) nor subsection (2) applies,
the employer commits an offence and is liable to a level 2 penalty.
An employer charged with an offence under s 9A(2) may, instead of being convicted of that offence, be convicted of an offence under s 9A(3).

The charge

The charge against HWE alleged that on 4 September 2008 at Yandi Mine, being an employer at a mine, it failed so far as it was practicable to provide and maintain at the mine a working environment in which its employees were not exposed to hazards, and that by that contravention it caused the death of Mr Sargeant.
A prosecution notice must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge and must, among other things, describe the offence with reasonable clarity: Criminal Procedure Act 2004 (WA) sch 1 cl 5(1)(a). Although it is generally sufficient for a charge to describe an offence in the words of the written law that creates it, particulars may be required if the charge is to meet the standard set out in the Criminal Procedure Act. The obligation in s 9(1) of the Act is expressed at the highest level of generality, and, in most cases, particulars of a charge under s 9 are needed. When the prosecution gives particulars, the accused cannot be convicted on proof of a different set of facts without a fair opportunity of defending itself on those different facts: Bunnings Forest Products Pty Ltd v Shepherd (Unreported, WASCA, Library No 980235, 5 May 1998). Particulars also benefit the prosecution, or should do so, in identifying the matters that it needs to prove.
The prosecution provided particulars of the charge against HWE. It alleged that the working environment was the Yandi Mine, including the intersection of the C5 Flood Bund Road and the Iowa ROM Road. It alleged the hazard was the risk of injury or death as a result of collision between vehicles, machinery and equipment, including surface mobile equipment. That description of the hazard is so general as to be of little value in meeting the requirements of the Criminal Procedure Act. It is also confusing in introducing the concept of risk into the description of the hazard. Hazard is defined in s 4 of the Act to mean 'anything that may result in injury to the person or harm to the health of the person'. The Act does not define hazard in terms of risks and probabilities, those concepts are part of the definition of practicable.
The prosecution also provided particulars of the failure by HWE to provide a working environment in which its employees were not exposed to hazards:
The accused failed:
(a)to ensure that the Iowa ROM Road was positioned at 90 degrees, or as close as possible thereto, to the C5 Bund road; and/or
(b)to ensure that visibility at the intersection was not obstructed, disrupted or otherwise impaired by vegetation or bundings; and/or
(c)to ensure that stop signs were installed at the intersection; and/or
(d)to ensure that advance intersection warning signs were installed on the C5 Flood Bund road approaches to the intersection; and/or
(e)to ensure that signs warning of haul trucks were installed on the C5 Flood Bund road approaches to the intersection; and/or
(f)to ensure that Mr Sargeant did not drive a vehicle at the intersection, where he could interact with surface mobile equipment/heavy mobile plant, including haul trucks, without driver training and experience in relation to such interaction.
In his written opening, the prosecutor explained that the use of the generally undesirable conjunction 'and/or' in the particulars was an allegation that all of the measures should have been taken, and that any one of them would have been a practicable measure of mitigating the hazard. The allegation against HWE is that it failed to do all or any one or more of those things, that those things were reasonably practicable, and that an employer was required to do those things in order to meet its duty.
The factual issues regarding these particulars were limited. There was no dispute that HWE had not done the things specified in (a), (c), (d) and (e). The question at trial was whether the failure to do these things was a failure by HWE to meet its obligation to provide a safe work environment.
Particular (b) required the determination of disputed facts. The defence requested the prosecution to state each and every respect in which visibility at the intersection was obstructed, disrupted or otherwise impaired by vegetation or by a bunding. The prosecution responded:
The bunding and vegetation at the intersection obstructed, disrupted and impaired visibility in the following respects:
(a)drivers of light vehicles entering the intersection from the south on the C5 Flood Bund road were not provided with a clear view of traffic coming from the Iowa ROM road in sufficient time to avoid a collision or minimise the severity of a collision.
(b)drivers of light vehicles entering the intersection from the east on the Iowa ROM road were not provided with a clear view of traffic on the C5 Flood Bund road in sufficient time to avoid a collision or minimise the severity of a collision.
(c)drivers of heavy vehicles entering the intersection from the east on the Iowa ROM road were not provided with a clear view of light vehicle traffic on the C5 Flood Bund road in sufficient time to avoid a collision or minimise the severity of a collision. (emphasis added)
Whether the bundings and vegetation affected visibility in the manner alleged was a contested question of fact.
The defence also requested, in respect of par (c), that the prosecution identify 'in accordance with what regulation or otherwise it is asserted that stop signs ought to have been installed at the intersection'. The prosecution responded that the basis of the allegation was the duty in s 9 of the Act. While this is unhelpful as a positive averment, it shows that the prosecution was not relying on the Australian Standard, AS 1742.2 (Manual of uniform traffic control devices).
The standard, AS 1742.2, was, however, relevant in several respects. As particulars of pars (d) and (e), the prosecution referred to the use of warning signs in the mining industry, and that the Yandi Traffic Management Plan referred to the Australian Standard, AS 1742.2 which provides guidance on when such signs are required.
Particular (f), which was added later, raises quite different issues. Its scope was also the subject of some contention at the hearing of the appeal, and I must return to it below.
In the further and better particulars, the prosecution also stated (again the emphasis is mine):
The alleged failures … materially contributed to the collision in the following respects:
(a)Messrs Redmond and Sargeant were not provided with a clear view of the other in sufficient time for each of them to avoid the collision or minimise the severity of the collision.
(b)Mr Redmond was not required to stop before entering the intersection.
(c)Mr Sargeant was not warned of the possible dangers ahead.
(d)Mr Sargeant was not trained and experienced in respect of:
i.the dangers associated with the restricted visibility afforded to haul truck drivers (ie coupled with the large size and mass of haul trucks); and
ii.the need for drivers of light vehicles to carefully observe haul trucks at intersections and prepare to slow down or stop if necessary to avoid a collision, or minimise the severity of a collision, irrespective of right of way.

The trial

The trial proceeded four years after the relevant incident. It was heard over eight days.
The prosecution called 21 non‑expert witnesses. The majority of them were employees or former employees of HWE or of BHP Billiton, one of the joint venturers operating the mine. The prosecution also called two inspectors with the Department of Minerals and Petroleum, Yadav Sharma and Anthony Robertson, and two expert witnesses: Rosemary Selby, Transport Engineer, and Nigel McDonald, a civil engineer who reported as part of a team which conducted a road safety audit of the Yandi Mine after the accident. Several documents, including reports of Ms Selby and Mr McDonald, were tendered as exhibits. The report by Ms Selby was commissioned by BHP Billiton Iron Ore and submitted to the Department of Mines and Petroleum. The report by Mr McDonald was the result of a prohibition notice requiring an extensive review of matters including the signage at the Iowa intersection by a competent person in road design.
HWE called only one witness, Grant Johnston, a consulting engineer.

The magistrate's reasons

The Magistrates Court Act 2004 (WA), s 31, provides:
(1)The Court's reasons for a judgment in a case
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
The content of the obligation under s 31 is not the same in every case and depends very much on the circumstances of the particular case. Determining whether reasons are adequate raises questions of degree and may involve a consideration of what can be legitimately inferred from the reasons: see Bennett v Carruthers [2010] WASCA 131 [25], [27]; Manonai v Burns [2011] WASCA 165 [53], [55]. The obligation on the court to identify the facts that it has accepted and give the reasons for doing so requires it to set out findings on why it has accepted one set of evidence over conflicting significant evidence: Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 [32]; Manonai v Burns [55]; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443.
The magistrate prefaced his discussion of the evidence and his findings of fact by saying he would refer only to those parts of the evidence that he thought were necessary for the purpose of giving his reasons. His reasons for decision are short, having regard to the volume of evidence adduced over an eight day trial. He refers to little of it. The appellant does not separately contend that the magistrate failed to adequately disclose his reasoning. But four grounds of appeal allege failure to have any or sufficient regard to the evidence and another five allege failure to consider and determine matters required by the Act.
The magistrate set out the charge and the particulars which had been provided by the prosecutor. He directed himself as to the onus of proof in a criminal charge. He then discussed the legal principles applicable to the charge under s 9. After setting out the statutory definition of 'practicable', the magistrate stated these five propositions:
1.The words reasonably practicable are ordinary words, bearing their ordinary meaning and simply call for the making of a value judgment in light of all the facts.
2.The prosecution bears the onus of proving a breach of duty, including the question of practicability.
3.A finding of breach cannot be based upon speculation, but each element must be proved by evidence.
4.There is an onus on the prosecution to prove the employer's failure beyond reasonable doubt. If there is a doubt raised by the evidence as to whether the events were caused by the failure of the employer or some unrelated factor, then the employer is entitled to the benefit of that doubt.
5.Proof of a single instance of negligent supervision by particular supervisors is not necessarily proof that the appellant failed to provide and maintain a safe working environment.
His Honour referred particularly to the decision of the Court of Appeal in Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 [31], [37]. It does not appear to be in dispute that each of the five propositions is correct, although they are not a complete statement of the applicable principles. In particular, his Honour did not refer to the underpinning consideration that the safety of those who work for them is one of the chief responsibilities of all employers: Laing O'Rourke [31]; Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119, 123 ‑ 124. The 'value judgment' must be located in that context, that is, in the duty on an employer to ensure, so far as is practicable, that its employees are not exposed to hazards at the workplace.
The reference to a value judgment may not always be useful. The magistrate may be required to determine a threshold factual question: did the employer fail in the manner alleged? Where the prosecution alleges failure to implement a measure that was readily available and relatively inexpensive, such as installing a traffic sign, the issue may still be factual: has the prosecution proved that the measure is a suitable way to ensure a safe workplace?
The statement in proposition 4, regarding whether the events were caused by the failure of the employer, must also be considered with caution. In his reasons, the magistrate began his consideration of the particulars with the question: did the intersection and its layout contribute to the accident? This, in my opinion, was not the correct question when determining whether the employer contravened s 9(1), and had the potential to lead to error. There are two features of this case which call for care.
First, where an employer is charged under s 9A(2), the offence has two elements: whether the employer has contravened s 9(1); and whether by that contravention it has caused death or serious harm. An offence may be committed even where the breach of duty has not caused the incident in which an employee suffered death or serious harm. Asking whether the employer caused 'the events' may deflect the court from the true inquiry and may result in a failure to consider whether there has been a contravention of s 9(1), and perhaps whether the court should convict under s 9A(3).

Second, the prosecution case was not that HWE caused the hazard. Its case was that the interaction between haul trucks and light vehicles was a well‑known hazard at open‑pit mines, with a particular challenge arising because of the difficulty in seeing things, particularly to the right, from the driver's position in a haul truck (written opening [8] - [10], oral opening Green AB 31). It was alleged that the steps set out in the particulars were practical means to mitigate the risk of injury, and that HWE failed in its duty by failing to implement them.

Findings

Before dealing further with magistrate's findings, it is convenient to refer to some matters of terminology.
•The intersection where the accident occurred is generally referred to as the Iowa intersection. The two intersecting roads are the Iowa ROM Road, and the C5 Flood Bund Road, sometimes referred to as the C5 Pit Access Road, or the Flood Bund Road. The magistrate referred to the two roads by acronyms, the IRR and the FBR.
•The particulars use the term 'bunding'. Some witnesses and documents used the term windrow.
•Mr Sargeant was driving a Toyota Landcruiser utility. It was referred to as a light vehicle or LV.
•There were three different models of haul truck used on the site. The differences between them do not appear to be material to the matters on appeal. The truck involved in the collision was a Caterpillar 789C. It was approximately 11 m long, 6.9 m wide, and 5.5 m high.
The haul trucks had 'blind spots'. That feature of the trucks is significant. The trucks are left hand drive, with a substantial A‑pillar obscuring the view to the right. Some drivers who gave evidence spoke of further obstruction to their view to the right caused by equipment within the truck cabin, hand rails, and an external mirror (Mr Redmond, Mr Madden at Green AB 212 and 283). The driver is also comparatively high, and the truck wide. Mr Johnston had been asked by HWE to report on visibility, taking into account the layout of the cabin of the haul truck and the extent of blind spots. He carried out a blind spot mapping which demonstrated a blind spot caused by the A‑pillar with an overall width of about 10 degrees, and also an area extending about 20 m around the truck where the body of the truck obstructed the driver's view (Green AB 649, 3384). He said, at par 8.16 of his report, 'Part of any driver's responsibility is to check any relevant blindspots before proceeding … In a haul truck approaching a road junction this involves leaning forward or backwards to check and clear the A‑pillar blindspots by looking around the A‑pillars' (Green AB 3395). The drivers who gave evidence said they compensated for the obstructions to their vision in this way.
His Honour found the following general facts. None of these findings was challenged on appeal:
1.September 4 was the day of the funeral of a worker from the Yandi Mine. Numbers for the workforce were down and a memorial service was held at the mine. Not much work was planned for the day.
2.One consequence of the memorial service and funeral was that there were some shift changes. These included a change in the day shift supervisor who assumed control of Mr Sargeant.
3.Mr Sargeant had been instructed to carry out another task, washing the cylinders on one of the big loaders, which would be done on a wash pad alongside the workshop area (that is, not in the pit). That task would have taken at least that shift and possibly the next.
4.Mr Sargeant was not requested or instructed to drive in the pit that day. His duties did not involve him driving in the pit area.
5.The mine had a permit system for those who could drive in the pit area. Mr Sargeant did not have a pit permit, as his regular supervisor said he would not have approved one.
Mr Sargeant was driving a light vehicle in a generally northerly direction on the C5 Flood Bund Road in the pit area of the mine. He was returning to the workshop where his normal duties were carried out. The Iowa intersection at the time was a T junction, with the Iowa ROM Road approaching from the west. The Flood Bund Road was the continuing road. There was a give way sign on the Iowa ROM Road. Although the roads in the mine were not public roads, employees were required to comply with the provisions of the Road Traffic Code 2000 (WA).
At the time of the collision there were three haul trucks in the general area of the Iowa intersection. They were driven by Allan Redmond, Gary Watt and Simon Binks. The haul truck driven by Mr Redmond approached the Iowa intersection from the west. As he entered the intersection, his vehicle collided with the light vehicle driven by Mr Sargeant. The difference in size between them was such that the light vehicle was crushed in the impact. No mechanical issue was found with either vehicle that would have caused or contributed to the crash.
His Honour found that Mr Redmond was an honest witness whose evidence should generally be accepted. On that basis, his Honour found (Blue AB 12):
[Mr Redmond] … didn't see Mr Sargeant's vehicle at any time prior to the collision and even then had to stop his truck and leave the cab to go and find out what he had hit.
Mr Redmond asserted that there was good visibility to left and right when approaching the intersection from the [Iowa ROM Road]. He repeated this several times … He said 'you can still ‑ all the way along this whole road you still have, in a haul truck, you still have good clear vision of this road during the entire length … even at the lowest point, you can still see … I'm sorry, you can't see the actual road itself but you can see the Flood Bund, the windrow on the side of the haul road and ‑ which meant that you could see vehicles. You could see haul trucks clear as day, LVs. They would stick out above the top of the windrow … and since [they're] supposed to have their beacon on – ninety nine times out of a hundred the first thing that catches your eye isn't the vehicle itself, it's the flashing beacon'.
This evidence that visibility was good from his haul truck going down the IRR to the give way sign is crucial to the case. Mr Redmond repeated and reiterated this evidence subsequently …
He said he saw Gary Watt's haul truck coming from the right and when questioned … 'were you still checking to see whether or not anyone was in front or behind him?' He replied 'always'. Asked again, 'did you see anyone behind him?' he replied 'no'. When asked 'did you look for light vehicles?' he replied 'absolutely' … He said 'we were basically closing on the intersection at almost an identical rate', referring to Watt and himself.
At T25 he said 'then I made the turn and as I made the turn the last thing I did, looked ‑ as the back end of his truck came around, the last - was the back of his truck and a clear view down the Flood Bund Road and there was absolutely nothing there'.
At T26, he confirmed that he and Watt were turning past each other, with Watt turning left off the FBR onto the IRR, and Redmond turning right off the IRR onto the FBR.
… I have no doubt at all that Mr Redmond drove his truck into the intersection, failed to give way to the LV driven by Mr Sargeant as he didn't see him.
Mr Redmond at no time thought to ascribe responsibility for the collision to impaired sight lines caused by A pillars, cabin height and/or layout, vegetation, or bundings. Indeed he said at T41 'before my vision was started to be blocked by [Mr Watt's] truck there was nothing visible behind him'. When questioned how far he could see behind [Mr Watts] he replied 'probably a couple of hundred metres'. …
The only theory he could proffer as to why he didn't see Mr Sargeant was his assumption/contention that Sargeant 'was going a heck of a lot more than 60 …' … I stress again that he decided after doing the aforesaid analysing to assume excessive speed by Sargeant. He did not blame the intersection, windrows, site [sic] lines, vegetation or anything else, even in hindsight.
Later, the magistrate found that Mr Redmond 'was aware of his blind spots and knew how to compensate for them'. (Blue AB 25)
Mr Watt, who had been driving a haul truck in front of Mr Sargeant's vehicle, said that he did not see the collision and had not seen Mr Sargeant behind him. Mr Binks was approaching the Iowa intersection in a haul truck along the Flood Bund Road, but from the north. He did not see Mr Sargeant's vehicle, or the collision, but was watching Mr Redmond's truck.
The one area where the magistrate did not entirely accept the evidence of Mr Redmond was in relation to the speed of Mr Sargeant's vehicle. His Honour accepted the estimate of Mr Johnston, as an expert witness in crash reconstruction, that Mr Sargeant's speed was probably about 60 km per hour before he attempted to brake, about 24.5 m from the point of collision (Blue AB 15).
The magistrate then dealt, separately and in turn, with each of the particulars provided by the prosecution. He did so by posing the following general questions: why was Mr Sargeant driving on FBR on 4 September 2008; is the pit permit issue important; did the intersection and its layout contribute to the accident; and what was the cause of the accident.

Particular (a)

Particular (a) refers to the angle at which the two roads met at the Iowa intersection. The primary facts were not in dispute.
The roads did not meet at 90 degrees. There is a convenient description of the intersection in the report of Mr Johnston (Green AB 3373 ‑ 3374). The Iowa ROM Road was approximately 24 m wide, the Flood Bund Road about 28 m wide. The Iowa ROM Road curved slightly. The angle of the Iowa ROM Road to the Flood Bund Road, when approaching from the south (the direction from which Mr Sargeant approached), was about 100 to 102 degrees at the intersection, and slightly less as one moved further away from the intersection. The angle at which the roads met at the north of the intersection was, due to the curve, about 63 degrees. Mr Johnston said in his report that it was desirable to change that relationship if possible.
The magistrate accepted that HWE was responsible under the Act to amend the layout of roads and intersections where safety was an issue. He also accepted that T junctions meeting at 90 degrees provided the best chance for vehicles on each road to see each other. He held, however, that the safety issue was not whether the angle of intersection complied with traffic management plans, but the sight distance and minimising hazards.
The evidence of Mr Johnston was that: first, the angle to the south was within accepted tolerance in road design; second, the increased angle to the south slightly opened up the lines of sight for the driver on the Flood Bund Road, and may have compensated for the haul truck being left hand drive with an A pillar to the driver's right. The magistrate accepted this evidence (Blue AB 17) and found that the fact the intersection was not at 90 degrees was not a failure to comply with the Act, and did not expose Mr Sargeant to the hazard of a collision. He also accepted the evidence of Mr Redmond who denied that he had visibility issues created by the intersection, particularly to the right, and said that no other witness who drove haul trucks '[attributed] any substantial problem to the road configuration'.
The magistrate did not make findings about the effect of the angle to the north of the intersection, nor about the sight distance for vehicles on the Flood Bund Road. He did not refer to Mr Johnston's statement in his report that it was desirable to change the angle to the north if possible (Green AB 3401).
The appellant does not directly challenge the findings about particular (a), and refers to the angle at which the roads met only as a particular to ground 5 (which addresses the impairment of view by the bunding and vegetation). It is also a particular of ground 13 that the Iowa Road curved slightly, and the prosecution alleged that the intersection was 'hidden' for north bound vehicles on the Flood Bund Road.

Particular (b)

This is the only particular regarding the intersection where the primary facts were in dispute. His Honour directed his findings on this particular to the issue of visibility. That approach was appropriate where the allegation in the particulars was that drivers on each road were not provided with a clear view of traffic on the other road in sufficient time to avoid a collision or minimise the severity of a collision.
This particular is the subject of grounds 5, 6 and 7 and I will deal with the magistrate's reasons in detail when addressing those grounds.

Particular (c)

The magistrate's findings on particular (c) are very brief. The intersection was not controlled by a stop sign. The question was whether the employer's duty required a stop sign be installed. The magistrate accepted evidence that a give way sign was 'adequate' for the Iowa intersection, and held that the prosecution had not established this alleged failure.
The magistrate's findings on the need to install a stop sign for vehicles on the Iowa ROM Road are challenged in grounds 8, 9 and 10.

Particular (d)

HWE had not installed intersection warning signs. The magistrate concluded that, under the conditions that applied at the mine, intersection warning signs would have no use and the prosecution had not established the failure.
These findings are challenged in grounds 12, 13, 14, and 15.

Particular (e)

HWE had also not installed signs warning of haul trucks on the approaches to the intersection. The magistrate found that Mr Sargeant must have been aware that trucks were on the road. More generally, he found that warning signs were superfluous, because haul trucks were, by their size and movement, obvious to any observer. These findings are challenged in grounds 16 and 17.

Particular (f)

There is both some uncertainty, and a marked disagreement between the parties, regarding the intended scope of this particular, and whether it included an allegation to the effect that HWE failed in its duty of supervision in not preventing Mr Sargeant from taking his unauthorised drive. Read literally, the allegation includes an allegation of failure in supervision.
The prosecution provided a written opening. Particular (f) was touched on only briefly. Under the heading 'Causation of death', the opening states that Mr Sargeant's death would not have occurred in the way it did since if he 'had been trained to drive in the pit, it is likely that Mr Sargeant would have slowed down and approached the intersection with more caution'. The other references in the written opening appeared to treat particular (f) as directed to training.
In his oral opening at the trial, the prosecutor referred to this allegation as 'a failure to provide adequate training' (Green AB 35). Later in his opening, however, the prosecutor referred to evidence that Mr Sargeant's fellow employees did not know whether he had a pit permit, and that, before driving into the pit area, he did not inform his supervisor 'who did not know, in fact could not have known' that Mr Sargeant had gone into the pit area (Green AB 61).
In his oral opening, counsel for HWE treated particular (f) as having two components: whether HWE permitted Mr Sargeant to drive in the pit, and whether Mr Sargeant had been trained and had a permit (Green AB 97).
In his written closing submissions, the prosecutor appears to have changed the focus of this allegation. He now submitted that the risk of an apprentice driving in the pit without a permit was foreseeable, as light vehicles were accessible and keys were left in the ignition. The risk of an apprentice driving without a pit permit required additional supervision, and for those supervising to know whether a particular employee had a permit. In his oral closing, the prosecutor submitted that the employer needed to ensure that tradespeople working with apprentices knew or had some way to find out whether an apprentice had a pit permit (Green AB 744).
In his oral closing, counsel for HWE submitted that the plain reading of particular (f) was a failure to give Mr Sargeant relevant driver training and experience, and supervision was no part of that particular (Green AB 763). Later, he referred to correspondence between the solicitors for the parties, in which the solicitor for the prosecutor 'confirmed that the prosecution will allege that if Mr Sargeant had adequate training and experience he would have taken steps to avoid the collision'.
Ground 19 of this appeal alleges that the magistrate 'should have found that there was a failure by the respondent to ensure that Mr Sargeant did not drive at the Iowa intersection'. This ground prompted HWE to complain that the appellant had gone beyond the case which the prosecutor had put at trial.
Counsel for the appellant accepted that the prosecution is bound by its particulars, but disputed the respondent's understanding of particular (f), and its reliance on correspondence between the parties.
The magistrate addressed this particular by asking why Mr Sargeant was driving on the Flood Bund Road on that day. He found that Mr Sargeant acted without authorisation and contrary to express directions when he drove in the pit area; his duties 'did not involve driving in the pit area at all, at any time'; and his supervisor would not have allowed him to do so. None of those findings is challenged. The magistrate also said that Mr Sargeant was 'on a frolic of his own'. It is an unfortunate expression, particularly if it directs attention away from the elements of the offence set out in the Act. But I am not satisfied that his Honour used the expression to mean anything more than that Mr Sargeant had no work related reason to be driving in the pit.
His Honour did not make findings about supervision of employees to ensure that those who did not have permits did not drive in the pit. He may have read the particular as limited in the way contended by HWE.
Grounds 18 and 20 also relate to this particular.

The magistrate's conclusion on the cause of the accident

His Honour concluded by considering whether the prosecution had succeeded in satisfying the court beyond reasonable doubt that HWE had failed to meet its obligation under the Act, in the manner in which the charge had been particularised. He found that it had not. Specifically, he found that the accident was caused by a serious driving error of Mr Redmond, and that it was 'highly probable' that Mr Redmond had turned into the Flood Bund Road while his view of Mr Sargeant's vehicle was obscured by Mr Watt's haul truck or by the A‑pillar on his own truck.
[Mr Redmond] had made the decision not to stop at the give way sign as he had satisfied himself (incorrectly) that there was no vehicle behind Mr Watt's that he needed to give way to … Mr Sargeant did not die as a result of any failure on the part of his employer, [HWE]. He died as a result of Mr Redmond's inadvertent, but fatal driving error [Blue AB 25].

The grounds of appeal

There are 22 proposed grounds of appeal, many with extensive particulars.
There is a group of grounds which assert a pervasive error of law in his Honour's approach to the requirements of s 9 of the Act, in particular as to the measure of the duty on an employer under that section. Counsel for the appellant described ground 1, which makes this general claim, as the pivotal ground, with other grounds illustrating the error of law alleged in ground 1.
One reason why there are so many grounds is that incidental findings of fact are challenged on the basis that they were 'critical' or must have 'impacted the learned Magistrate's judgment'. The degree of overlap and repetition in the grounds also help to explain the number of separate grounds.
I will deal, separately, with specific grounds alleging errors of fact (or fact and law), but must first consider the central issue of error of law.

Section 9 and practicability

The requirement to provide and maintain a working environment in which, so far as is practicable, employees are not exposed to hazards is not an absolute duty, but a duty 'so far as is practicable'. The definition of practicable in s 4 introduces concepts of knowledge, risk, and foreseeability. It requires the court to consider:
(a)the severity of any potential injury or harm to health that may be involved and the degree of risk of such injury or harm occurring; and
(b)the state of knowledge about -
(i)the injury or harm to health referred to in paragraph (a); and
(ii)the risk of that injury or harm to health occurring; and
(iii)means of removing or mitigating the potential injury or harm to health;
and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii);
The words of the definition should be read into the operative section, which must then be construed and applied: see Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12].
The statement of the duty as one 'so far as is practicable' is not a qualification of the duty to provide and maintain a safe working environment, but the measure of what the Act requires: Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92. In Baiada Poultry, French CJ, Gummow, Hayne, Heydon and Crennan JJ described that element of the employer's duty, in materially similar legislation, in these terms:
The words 'so far as is reasonably practicable' direct attention to the extent of the duty. The words 'reasonably practicable' indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment. [15]
The critical question in the present case was whether the prosecution had proved that the means identified in the particulars to the charge were reasonably practicable steps for HWE to take to achieve the identified end of providing and maintaining a safe working environment so that failure to take them was a breach of that duty. To decide whether a measure is reasonably practicable requires the court to make a value judgment. In Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 [51] [54], Gaudron J spoke of the need to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk. Section 9, read with the definition of practicable in s 4, calls for that balancing exercise, although the factors to be balanced are differently described: the severity of potential injury; the degree of risk of such injury occurring; the availability, suitability and cost of the means of removing or mitigating the potential injury; and the state of knowledge about each of those things.
Not all of the relevant factors were in contest. HWE did not challenge the evidence that it knew of the general hazard alleged, the risk of collision between vehicles, machinery and equipment, and the risk of serious injury or death should that occur. Particular matters affecting that hazard were also not disputed: the size of the haul trucks compared to light vehicles; the degree of interaction between them; the sight restriction for drivers of haul trucks. HWE did not question that the means identified in particulars (a) to (e) were available. The cost of corrective measures was never an issue.
The degree of risk generally and at the Iowa intersection, was in issue. It was in question whether the prosecution had shown that the steps it had identified in the particulars of the charge were a reasonably practicable means to ensure safety by removing or mitigating the potential for injury, so that HWE was required to implement those steps to meets its obligation. HWE contended that it had not failed in its duty. It also argued that the incident in which Mr Sargeant died was explained by error on the part of the truck driver.

Ground 1

The appellant's overarching complaint is that his Honour failed to have regard to the matters specified in the definition of practicable and failed to carry out the balancing exercise required by s 9 having regard to the known risk of serious injury. This is the basis of ground 1, which alleges:
1.The learned Magistrate erred in law in confining himself to making a value judgment without sufficient regard to the specific matters referred to in the definition of 'practicable' in s 4 of the Mines Safety and Inspection Act 1994 (MSI Act) and without undertaking the required balancing exercise.
Particulars
(a)The learned Magistrate correctly identified that s. 9 of the MSI Act must be considered by reference to the definition of 'practicable' in s 4 of the MSI Act but then confined himself to the making of a value judgment (Reasons 2-3).
(b)The learned Magistrate did not make any finding as to severity of potential injury, degree of risk of injury occurring, or state of knowledge in relation to those matters, under and in accordance with s 4 of the MSI Act.
(c)The learned Magistrate did not undertake the 'balancing exercise' required to decide whether measures were practicable, under and in accordance with s 4 of the MSI Act.
This alleged error underpins the complaints in other grounds, particularly grounds 2, 7, 11, and 14 (which assert error of law in failure to have regard to evidence bearing on the question of practicability) and grounds 8, 12, 16, and 18 (which assert error of fact and law in failing to consider and determine whether it was practicable for the respondent to have mitigated the risk of collision at the Iowa intersection by the steps alleged).
Ground 1 is expressed so generally that it is difficult to discuss it in isolation. In relation to one of the specific allegations, his Honour did not make the value judgment complained of, but did not need to do so. Particular (b) was based on a contested factual question. His Honour found as a matter of fact that the evidence did not establish that visibility was impaired in the manner which the prosecution had alleged. That finding disposed of the allegation.
The other particulars relating to the configuration of the intersection, and the absence of traffic and warning signs, did not rely on a disputed threshold question of fact. The magistrate, however, in each case determined the matter on a factual issue: the intersection did not meet the design criteria for a stop sign because safe sight distances existed; advance warning signs for an intersection would have no use because drivers would be familiar with the intersections in a closed work site; signs warning of haul trucks would be totally superfluous to safety because haul trucks are both constantly present and obvious. Each of those findings enabled the magistrate to determine the particular allegation without further considering whether the step was a practicable means of mitigating the risk of collision and serious injury at the intersection.
In proceeding in that way, his Honour apparently set out to answer the question: did the intersection and its layout contribute to the accident? (Blue AB 15). That is not the question posed by s 9(1).
HWE submitted that the magistrate found none of the alleged breaches had been proved, and was not required to expressly articulate whether it was practicable to have taken any other measures. The reference to 'breaches' is difficult to understand in the context of the issues raised on this appeal. It was not, and could not, be disputed that HWE's employees were exposed to a hazard in driving light vehicles on roads also used by heavy machinery. There were findings to be made about the risks of that hazard being realised and injury occurring, specifically the risk at the Iowa intersection. There was undisputed evidence that HWE knew of the hazard: it had identified the interaction between light vehicles and surface mobile equipment as a risk with extreme consequences (Green AB 2097); the BHP Billiton Fatal Risk Control Protocols identified light vehicles as involved in a significant proportion of fatal and high potential incidents, with identified factors including lack of separation from other mobile equipment (Green AB 2153). It was not in dispute that the roads did not meet at 90 degrees at the Iowa intersection, or that HWE had not installed a stop sign, or warning signs in the approach to the intersection. It was not in dispute that in August 2006, a haul truck had failed to give way to a light vehicle at the intersection, although the circumstances were very different. HWE was obliged to ensure, so far as practicable, that its employees were not exposed to hazards. The question was whether the steps identified in the particulars were reasonably practicable means that HWE should have adopted to meet its duty under s 9, by mitigating the risk of harm occurring.
I will return to the general allegation in the context of more specific grounds.

Ground 2

Ground 2 lists evidence relevant to the risk of serious injury in collisions between light vehicles and surface mobile equipment at the Iowa intersection, and HWE's knowledge of that risk. It asserts the magistrate erred in law in failing to have any or sufficient regard to that evidence. The ground lists ten matters:
(a)There was a high level of regular daily interaction between light vehicles and surface mobile equipment on the haul roads at the Yandi mine.
(b)The large size and mass of surface mobile equipment at the mine posed a significant risk of injury and death to any occupant of a light vehicle that collided with surface mobile equipment.
(c)Unlike cars on public roads in Australia, haul trucks are left hand drive and have well known visibility restrictions, including significant visibility restrictions to the right and in the 24 m radius of the vehicle.
(d)Drivers of haul trucks had restricted visibility, worked long shifts as part of a fly in fly out roster system and performed repetitive driving tasks.
(e)The respondent's Traffic Management Plan required drivers to approach all intersections with caution irrespective of right of way.
(f)The respondent's pit permit trainer taught trainees to pull up at intersections even if they had right of way due to the need to give way to haul trucks by reason of the significant risk of severe injury or death.
(g)Trained and experienced drivers of light vehicles exercised special care at intersections where they may interact with surface mobile equipment irrespective of right of way by reason of the significant risk of severe injury or death.
(h)There was a near miss incident at the Iowa intersection on 10 August 2006 in which the driver of a haul truck failed to give way to a light vehicle.
(i)The risk of interaction between light vehicles and surface mobile equipment was identified as a major risk in the respondent's HIRAC risk assessment for the mining department at the Yandi mine.
(j)The risk of interaction between light vehicles and surface mobile equipment was identified as a key fatal risk in BHP Billiton Fatal Risk Control Protocols 1 and 2.
The evidence listed was not contentious, although, in relation to the degree of risk, HWE could point to the absence of any previous occasion of a fatality on a road at the mine over the 17 years it had operated.
HWE submitted in relation to ground 2 par (d) that the prosecution had not pleaded that the drivers' long shifts and repetitive tasks created a hazard, and the prosecution must be confined by the particulars it gave at trial. That submission mistakes the purpose of the reference to this evidence in ground 2. The appellant does not allege that HWE failed in its duty under the Act in having the drivers perform such tasks. But it submits that, in considering the means that the employer should adopt to ensure its employees are not exposed to hazards, such operational factors are relevant in the same way that, for example, the restrictions on the drivers' view from the haul trucks are relevant. It was on this basis that the prosecution opened:
In addition [to] that likelihood of a collision, the potential for there to be a collision and have extreme consequences was exacerbated by the repetitive nature of the work, the length of the shifts that haul truck drivers were working. Twelve and a half hour days, two weeks on, one week off, but the point we make … is that because of this, because of the fact that you have these huge machines driving on the left-hand side of the road with poor visibility, that the traffic management at a mine such as the Yandi mine cannot be equated directly with traffic management on public roads. (Green AB 31 ‑ 32)
Similarly, HWE submitted that the matters set out in (e), (f), and (g) have no relevant connection to the way in which the charge was formulated and were not particulars of the charge. Again, that is not the purpose of those paragraphs. That evidence, which was not disputed, demonstrates knowledge of the hazard and, in (e) and (f), two of the steps taken to lessen the risk.
More generally, HWE submitted that, in the matters listed in (a) to (g) of ground 2, the appellant had not disclosed the basis on which the magistrate erred. Ground 2 is also very general. Grounds 8, 12, 16, and 18 all allege the magistrate erred in fact and law in failing consider and determine whether it was practicable for HWE to have mitigated the risk of collision at the Iowa intersection by the means specified in the particulars. The error alleged in ground 2 cannot be considered separately from those allegations. The failure to have regard to evidence can only be properly discussed in the context of the findings that were or ought to have been made. In considering each of the more specific grounds, the court should take into account that the magistrate has not referred to that evidence as relevant to his decision.

Ground 3

3.The learned Magistrate erred in law in finding that the general attitude of mine management to safety was a critical point in determining the issue of whether the prosecution succeeded beyond reasonable doubt to satisfy the Court that the respondent failed to meet its obligation under the MSI Act as particularised (Reasons 22-23) in that the general attitude of mine management to safety was not relevant to any of the matters mentioned in the definition of 'practicable' in s 4 of the MSI Act.

The appellant placed some weight on this ground, describing it the 'most stark' example of reliance on irrelevant considerations. In my opinion, the appellant attributes to the magistrate a finding that he did not make.
The magistrate set out five matters, which he described as 'the critical points of the evidence of management'. They include the attitude of the mine management to safety. But they also include: that HWE was the appointed contractor; that it employed workers on the site, including Mr Sargeant; and that it was responsible to ensure that the provisions of the Act were observed. Nowhere in the judgment does the magistrate say that the attitude of management to safety was critical to whether the prosecution had established a breach of the Act. Nor, in my view, can that be inferred when the passage, including the other four 'critical points', is read as a whole.
Ground 3 is not arguable, and I refuse leave.

Ground 4

4.The learned Magistrate erred in fact in finding that the respondent acted on a near miss incident at the Iowa intersection on 10 August 2006 by lowering bunding and removing crossroads to make the intersection a T junction.
Particulars

(a)The respondent's Incident Report Form for the near miss incident on 10 August 2006 identified two corrective actions to be taken to prevent a recurrence:
(i)Introduction of signs notifying of haul road usage.
(ii)Site wide traffic management audit of intersections.

(b)Notwithstanding indication in the Incident Report Form that the corrective actions were taken:
(i)Signs notifying of haul road usage were not used in response to the near miss incident.
(ii)A site wide traffic management audit of intersections was not conducted in response to the near miss incident.

(c)The bunding was not lowered in response to the near miss incident on 10 August 2006.
(d)The bunding was lowered in 2005; prior to the near miss incident on 10 August 2006.

In its submissions on this ground, the appellant contended that the near miss incident was an important aspect of the factual narrative, and demonstrated actual knowledge of the risk at the intersection and the corrective measures identified at the time. The appellant argued '[it] can be inferred that the errors in respect of this critical aspect of the evidence impacted the learned Magistrate's judgment'.
The evidence about the near miss incident and the response to it was limited. The magistrate made no finding about how it had occurred, and reviewing the evidence I could not do so either. Some things seem to be clearly established: first, the incident occurred when the driver of a haul truck on the Iowa ROM Road entered the intersection without stopping for a light vehicle that was approaching on the Flood Bund Road; second, the driver of the light vehicle saw the truck in sufficient time to stop about 50 m away; third, the incident occurred at night; fourth, the intersection was then configured differently as it was a cross road.
The driver of the truck involved, Malcolm Dagg, had slowed down approaching the intersection and was well into the intersection when he saw a vehicle stopped on his right. In a report made at the time, Mr Dagg referred to 'bad visibility conditions'. But in his evidence, he could not remember if he was there referring to it being night time, or to dust, or possibly to lights from the approaching truck. He could not remember whether the incident was during the day or at night. The driver of the light vehicle, Bill Stephen, was not a witness at trial. A report made by Mr Stephen in August 2006 was in evidence (Green AB 2324). Mr Stephen said he saw Mr Dagg's truck and slowed down because 'that truck would have been blinded by the other truck'. When Mr Dagg's truck entered the intersection, Mr Stephen had plenty of space to stop.
The evidence of what happened in response to that incident is also inconclusive. The incident report form (Green AB 2325) sets out proposed corrective action, including the introduction of information signs and a traffic management audit, and the due date and date completed for each action. The proposed information signs appear to have been either to warn that trucks were crossing, or to tell people that different haul roads were being used (Green AB 2326). Lowering the bundings and closing the cross road were not recommended as corrective action at the time.
The appellant asserts that the actions recommended were not done. The incident report records that both were completed in September 2006. There is some evidence that the traffic management audit, which was to be done by Conrad Hunt, was done. It is recorded as completed on 15 September 2006. Mr Hunt did not make that entry himself, and he could not remember carrying out an audit in August or September 2006. But he said he 'probably would have done' (Green AB 404). Another witness, Elizabeth Coleman, said the dates on the records were completed once the actions had been completed (Green AB 385). Mr Dagg remembered that, following this incident, a lot of the intersections were reviewed (Green AB 358). He thought some action was taken, but could not recall exactly what may have been done (Green AB 358). The leading hand to whom Mr Dagg reported the incident, Graeme Best, remembered that afterwards 'maybe the windrows were lowered just a fraction' but otherwise the intersection did not change (Green AB 322).

It was not in dispute that, between August 2006 and September 2008, the intersection became a T junction rather than a cross road. On the evidence, it cannot be said with any confidence when this occurred and whether the intersection was modified in response to the incident in 2006, or for some other reason.
The employer's state of knowledge about the risk of injury and the means of removing or mitigating the potential injury is important, and evidence about the earlier incident was relevant. But the evidence regarding the 2006 incident does not support an inference that the ability of the driver to see the light vehicle had been impaired, by bunding or otherwise. Mr Dagg's vision may have been affected by the lights of the approaching truck, a hazard that resulted from the intersection being a cross road with the other truck approaching on an incline. But nothing in the evidence suggests that the height of the bundings was a factor, or was thought to be at the time. Whether the bundings were reduced following this incident is immaterial to HWE's state of knowledge about any risk related to the height of the bunding.
The complaint in this ground may have been pertinent if the case had been run differently. But the appellant has not demonstrated any connection between the magistrate's finding about the modification of the intersection and his findings regarding the circumstances in September 2008. An appeal under s 7 of the Criminal Appeals Act 2004 (WA) is against the decision of the summary court, not the reasons. While error in the decision may be demonstrated by showing error of fact in the reasons, not every error of fact results in a wrong decision. The submission that the errors 'impacted' the magistrate's judgment is meaningless.
Even if the magistrate erred in the manner alleged in ground 4, it has not been shown to be of any consequence to the result. Ground 4 is not arguable and leave should be refused.

Grounds 5, 6, and 7: the bunding and vegetation

Each of these three grounds is quite detailed:
5.The learned Magistrate erred in fact and law in finding that bunding and vegetation did not obstruct, disrupt or otherwise impair visibility at the Iowa intersection (Reasons 16-19).
Particulars
The Iowa intersection:
(a)was not configured at 90 degrees;
(b)had vertical alignment changes associated with the creek bed on the northern and western approaches and the rise to the Iowa crusher;
(c)was located on a curve;
(d)had bunding along the edge;
(e)had a NE corner set back from the SE corner; and
(f)had vegetation on the bunding,
such that the bunding and vegetation had the effect of:
(g)obstructing visibility of the intersection for drivers of northbound light vehicles; and
(h)obstructing, disrupting and impairing visibility of traffic at the intersection for all drivers at the intersection to varying degrees.
6.The learned Magistrate erred in fact in finding that the respondent had systems in place to remove vegetation at intersections, which intersections were a part of daily inspections by management (Reasons 18).
Particulars
(a)Risk assessments were not carried out by competent persons as required by the respondent's Traffic Management Plan.
(b)Individuals responsible for implementing the Traffic Management Plan on a day to day basis were not aware of its contents, had not received any instruction or training in respect of its implementation and used daily inspection forms which did not specifically require intersections to be kept clear of visibility obstructions.
(c)If a leading land identified vegetation as well overdue to be cleared, they were not required to remove the vegetation, faced practical difficulties in having the vegetation removed and would still tick the intersection as having been adequately maintained in the daily inspection form.
(d)Building maintenance and civil earthworks personnel at the mine would carry out vegetation removal only if asked by the mining department after vegetation had been identified as a hazard in order to improve vision at intersections rather than actively ensure that intersections were kept clear of vegetation.
7.The learned Magistrate erred in fact and law in failing to have any, or sufficient, regard to evidence that:
(a)the vegetation growing on the bunding at the intersection was identified as a hazard in the morning of the day of the accident but subsisted to the time of the accident;
(b)an independent study requisitioned by the State Mining Engineer from BHP Billiton Iron Ore Pty Ltd under s. 45 of the MSI Act identified the vegetation as restricting visibility and recommended that it be removed or trimmed back;
(c)a prohibition notice (Prohibition Notice 5133) issued by Senior Inspector of Mines O'Loughlin requiring an extensive review of, inter alia, the operating environment at the intersection by a competent person in road design resulted in the respondent obtaining a Road Safety Audit from ARRB which found that the bunding significantly restricted visibility in a number of places at the intersection, which was contributed to by the height of the bunding on the SE corner;
(d)the respondent had lowered the bunding and cleared the vegetation prior to the second inspection carried out by Nigel McDonald as part of conducting the above-mentioned Road Safety Audit;
(e)by letter dated 5 March 2010, in seeking to lawfully re-open the Iowa intersection, the respondent advised Senior Inspector of Mines O'Loughlin that, having regard to external advice from AECOM, and review of such advice by ARRB, it intended to re-open the Iowa intersection and in so doing would, inter alia, keep the bunding to a height of 1 m for a distance of 150 m around the curve on the southern approach to the intersection and keep the lowered bunding clear of vegetation; and
(f)the provision and maintenance of low bunding kept clear of vegetation was consistent with the revised traffic management plan adopted by the respondent after the accident.
The magistrate made the following findings regarding the bundings:
Poor, or inadequate visibility, obviously increases the hazardous risk of vehicles coming into contract, and [HWE] had the responsibility of maintaining visibility at the intersection.
It is accepted by me that bundings must be present on mines [an apparent reference to Mines Safety and Inspection Regulations 1995, reg 13.7] and that vegetation grows.
The height of the bunding at the intersection had been lowered to assist visibility of, and for light vehicles, after the so called 'near miss incident' in 2006.
[There] was no cogent evidence to enable me to find that the bundings themselves were too high at the intersections so as to interfere with visibility. This includes the many photographs taken of the scene of the accident … together with the evidence given by haul truck drivers and those who drove around the mine site in LV's.
[The] final resting place of Mr Sargeant's LV would suggest a good view of the intersection for some distance back from it.
I appreciate that bundings must not prevent the drivers of either haul trucks or LV's from being able to see each other, and in my view the evidence does not disclose that they did. (Blue AB 18 -19)
His Honour then considered the vegetation on the bundings and found:
Haul truck drivers called as witnesses indicated that visibility from the [Iowa ROM] to vehicles on [the Flood Bund Road] was not impeded from their high driving positions. [His Honour gave references to the evidence of the witnesses Messrs Watt, Lait, Madden and Shaw - he had already discussed Mr Redmond's evidence in detail].
I note that Messrs Madden and Shaw suggested some viewing restrictions caused by vegetation but that LV's could be seen.
Mr Lazic … described the intersection as 'satisfactory' in terms of visibility regarding the LV's.
I find that Mr Redmond … best sums up the situation when he said 'it depends what you mean by a problem. It made your vision, instead of clear and unobstructed, it did throw an obstruction into it, but it wasn't a solid obstruction, it was an obstruction you could see through to a degree and you could see around, and it wasn't as if it was a hedge growing on the windrow … It was sporadic growth, natural mother nature, here I want to grow something and I will'.
[HWE] had systems in place to remove vegetation at intersections which intersections were a part of daily inspections by management. It would be removed if it was a problem.
In my view, the vegetation that existed on the bundings at the intersection on 4 September 2008, on the balance of the evidence, including photographic, was not such as to increase the hazard that exist at any intersection of roads at any place. All witnesses, apart from Mr Dagg, expressed the view that visibility was satisfactory and that all types of vehicles could be seen on the [Flood Bund Road] from the [Iowa Road].
…
In my view, it has not been demonstrated in the evidence that vehicles (including LV's) on the [Flood Bund Road] could not see vehicles on the [Iowa ROM] assuming a proper lookout was kept. (Blue AB 19 ‑ 21)
These grounds must be assessed against the case the prosecution alleged in its particulars of the charge. The prosecution alleged that HWE failed to ensure that visibility at the intersection was not obstructed, disrupted or otherwise impaired by vegetation or bundings. In further particulars, it alleged the bundings and vegetation at the intersection obstructed, disrupted and impaired visibility because drivers of vehicles entering the intersection were not provided with a clear view of traffic in sufficient time to avoid a collision or minimise the severity of a collision. Whether the bundings and vegetation did obstruct, disrupt or impair visibility in this way was a factual question on which the allegation that HWE had 'failed' depended. This was the only particular relating to the state of the Iowa intersection where such a factual question arose.
The appellant submitted that his Honour erred by considering whether the visibility at the intersection was 'poor' or 'inadequate', rather than by applying the test mandated by s 9. It argued that, in assessing visibility, the magistrate was required to 'reflect the reality of the working environment at the intersection', and gave no weight to the 'suboptimal nature of the intersection'. The appellant referred to four specific matters:
(a)a blind spot associated with the rear vision mirror on the light vehicles;
(b)the driver of the light vehicle needed to round the curve with bunding and vegetation to their left obscuring their view of the intersection and impeding the visibility of other traffic;
(c)drivers approaching from the west (that is, the haul truck driver on the Iowa ROM Road) needed to pass through a low point associated with the creek bed and approach the intersection on a slight incline with bunding and vegetation impairing visibility of traffic on the Flood Bund Road, exacerbated by an unfavourable angle of intersection looking to the north;
(d)drivers of haul trucks worked long shifts and performed repetitive driving tasks while driving large equipment in a low visibility environment in an expedient manner while constantly engaging in high levels of interaction with light vehicles.
The four matters are based on the report by Ms Selby (Green AB 3222). Ms Selby did not conclude that the height of the bundings was itself an impediment. In oral evidence, she accepted that the vegetation may not have been the problem she thought it was when she wrote the report (Green AB 563), and that it was scattered and a driver had vision through it.
Ms Selby's oral evidence was consistent with the evidence of the defence expert, Mr Johnston. While vegetation could obscure a vehicle for a very short period of time, perhaps a few tenths of a second, it was not continuous and in most instances would only partially obscure the other vehicle. Mr Johnston also reported that the height of the windrow was such that it hid only the lower portion of a light vehicle, to a point between the top of the wheels and the bonnet. In all instances the bonnet and turret could be seen.
None of the experts supported a finding in terms of the particulars alleged. Counsel for the appellant pointed to no evidence from any of the witnesses who had driven light vehicles through the intersection in which they referred to impairment of view of other traffic by their rear vision mirror, the curve of the road, the bunding or the vegetation. Counsel for the appellant accepted that no witness said that there was not satisfactory visibility.
The evidence about the approach from the west on the Iowa ROM Road was that the low point associated with the creek crossing was about 300 m from the intersection (Green AB 3373). Counsel for the appellant pointed to no evidence, and I found none, that demonstrated the low point resulted in impairment of the driver's view (in the manner described in the particulars) closer to the intersection so that there would not be sufficient time to avoid a collision.
The reference to long shifts, repetitive driving tasks, and driving in an expedient manner, are not relevant to this specific issue: whether visibility was obstructed or impaired in the way alleged. The submission made on appeal that visibility was 'suboptimal', and had to be assessed in this context, is a departure from the case pleaded. The specific allegation that drivers were not provided with a clear view of traffic in sufficient time to avoid a collision or minimise the severity of a collision had to be proved. The appellant has not shown that, on the evidence presented to him, the magistrate erred in fact or in law in finding that it had not.
Ground 7 alleges failure to have regard or sufficient regard to particular evidence. The appellant submits that the evidence was plainly relevant to whether it was practicable for HWE to ensure that vision was not obstructed. The issue of practicability, however, did not arise when the prosecution had failed to prove the failure it had pleaded.
I would grant leave on grounds 5 and 7, but dismiss both grounds.
Ground 6 is a discrete ground that challenges the reasons, but in a manner which, even if established, would not affect the result. The charge did not allege that HWE failed in its duty by failing to implement and maintain a system for inspecting the road system and removing vegetation, or challenge the adequacy of the system it had.
In any event, the finding was supported by evidence from witnesses called by the prosecution. Ms Coleman (the alternate project manager) said that there was a system for the removal of vegetation at intersections, and checking to see whether vegetation should be removed, 'should have been part of their daily inspections' (Green AB 388, 389). Richard Darcey (registered manager) said there were daily inspections looking specifically at windrow heights, widths of haul roads, delineation and signage (Green AB 521, 522). Albert Schaus (alternate quarry manager) also spoke of daily inspections of the whole pit (Green AB 462, 485). One of the items recorded in these inspections was whether intersections were adequately maintained, which included visibility.
The appellant challenged this evidence, submitting that the issue of whether the respondent had systems in place to remove vegetation at intersections was a 'relatively complex matter that required detailed examination of evidence concerning the design, construction and maintenance of the intersection'. The appellant then addressed each of those matters in detail. The starting premise remains opaque: why was it necessary to consider design and construction of the intersection to find whether HWE had systems in place to remove vegetation?
There was sufficient evidence for the magistrate to find as he did, but even if there was not, no error affecting the result has been shown. Leave is refused for ground 6.

Grounds 8, 9, 10, and 11: the need for a stop sign

Ground 11 complains that the magistrate erred in law in failing to have any, or sufficient, regard to certain evidence. It contains a list similar to that in ground 2, although omitting par (a) and with three additions:
(d)Haul truck drivers at the mine drove expediently, including at intersections, for production and other reasons.
(k)The Iowa intersection was rarely used.
(l)The accused installed stop signs at all intersections at the mine after the accident.
Ground 11 pairs with ground 8:
8.The learned Magistrate erred in fact and law in failing to consider and determine whether it was practicable for the respondent to have mitigated the risk of collision at the Iowa intersection by installing a stop sign.
The magistrate found the allegation in particular (c) of the charge had no merit. He relied on three matters: accepting that the Road Traffic Code was applied at the site, the requirement to give way was identical at a give way sign and at a stop sign; neither Ms Selby nor Mr Johnston considered that the intersection met the design criteria for installation of a stop sign in AS 1742.2; and there was no previous history at the intersection which would require a stop sign.
In these findings the magistrate apparently picked up pars 9.18 and 9.19 of the report of Mr Johnston. Those paragraphs identified the matters that might require that a stop sign be installed at the intersection: first, if it met the design criteria for a stop sign; second, if there was a history of incidents or complaints which warranted further investigation and a stop sign was a suitable countermeasure 'if there are operational characteristics of the site which the installation of a stop [sign] might resolve'. Mr Johnston described this second matter as a discretionary installation for which there were no prescriptive formulae (Green AB 3402).
The appellant argued in relation to grounds 8 and 11 that, to determine whether HWE had met its obligation under s 9, the magistrate had to consider all of the evidence referred to in ground 11 and determine the severity of potential injury, the probability of that injury occurring, and the means by which that injury could be reduced or avoided, including, where relevant, the availability and cost of those means. He then had to determine whether HWE was obliged to install a stop sign by reference to the conditions applying at the Yandi mine, established by that evidence. While AS 1742.2 was potentially relevant to practicability, it was a standard developed for the public road system and was not necessarily a suitable standard for a mine site, having regard to the nature and level of the risk, and the particular operational characteristics of the site.
HWE argued that the evidence that a stop sign was not required by the relevant road design criteria was uncontroverted. It further submitted that for the magistrate to have found a stop sign was warranted by reference to what was practicable would have been an extreme step, reached perversely or against the overwhelming weight of evidence. It submitted that there was no evidence specifically to the effect that AS 1742.2 was an inadequate standard for this environment.
The appellant did not call evidence that specifically related the various factors it relied on to the need for a stop sign. But while the evidence was limited, in my opinion there was sufficient evidence for his Honour to consider whether, by reference to the risk of serious injury, the nature of the task being undertaken by the drivers, and the conditions in which they were operating, a stop sign was a suitable measure to mitigate the risk of injury.
First, there was evidence regarding the applicability of the road design criteria in AS 1742.2. Mr McDonald described AS 1742 as oriented towards the general public road system, and said that it does not consider specific industrial environments. While the standard set out principles and issues that need to be considered in industrial environments, 'it may require some particular consideration of the specific vehicles in a mine site' (Green AB 574 ‑ 575). Mr Johnston agreed that there was no specific guide for road design within a mine environment. He said that, historically, AS 1742 had been used as a 'sort of de facto first point' (Green AB 685).

Second, and more fundamentally, the design criteria in the standard cannot supplant the terms of the Act. The question is whether HWE had, so far as practicable, ensured the safety of its employees. That question calls for consideration of all of the evidence, including the nature of the operations being carried on, the type of equipment and vehicles being used, the visibility restrictions affecting the drivers of the haul trucks, the conditions under which they were working, the severity of any likely injury, and the state of knowledge regarding each of these factors. Mr Johnston apparently recognised the relevance of operational factors in his reference to the 'discretionary installation', although he confined his remarks to cases where there was a history of incidents or complaints. Mr McDonald also referred to the discretionary use of stop signs (Green AB 583).
Third, the case presented by HWE, both in the evidence of Mr Johnston and in questions put to each of the witnesses who drove haul trucks, was that the drivers had a responsibility to compensate for the visibility restrictions inherent in the equipment they were using by looking around the A‑pillar and other obstructions to their view to the right. The magistrate apparently accepted that drivers needed to compensate for blind spots (Blue AB 25), but did not consider the effect of the drivers' limited vision on the obligation of the employer.
The magistrate noted (at Blue AB 21) that, under the Road Traffic Code there was a separate obligation to stop at a stop sign. In cross‑examination by counsel for the respondent, Mr McDonald was asked the purpose of a stop sign, and said it was 'to require a vehicle and its driver to stop, to give them an extra moment to assess the road environment, rather than continuing the move through where they don't have as much time' (Green AB 583). The magistrate could weigh up the advantages and disadvantages of requiring vehicles on the Iowa ROM Road to come to a complete stop before entering the intersection without further evidence directed specifically to that question. To properly determine the issues under s 9, he should have done so.
Next, HWE submitted that there was evidence, not contradicted, that the use of stop signs at intersections at which there are adequate sight distances may lead to driver disobedience. That evidence was relevant, but had to be considered in the context of the other evidence, including the evidence of the drivers that they would stop at a stop sign, the configuration of the particular intersection, and the drivers' awareness of the factors limiting their vision and need to compensate for them. His Honour's reasons disclose no consideration of that issue.
HWE submitted that his Honour was not required to mention each piece of evidence or every matter that was raised in argument. That is undoubtedly correct. But it is readily apparent from the way in which the magistrate reached his finding on particular (c) that he confined his consideration to limited and, in my opinion, insufficient matters.
The appellant has made out grounds 8 and 11, and to the extent they are reflected in those grounds, grounds 1 and 2. Leave will be granted and the appeal allowed.
Grounds 9 and 10 are also directed to the magistrate's findings regarding particular (c).
Ground 9 directly challenges the finding that the Iowa intersection did not meet the road design criteria in the relevant standard. The error alleged is quite specific.
9.The learned Magistrate erred in fact and law in finding that intersection did not meet the design criteria for a stop sign under AS 1742.2 because safe intersection sight distances existed (Reasons 20).
Particulars
(a)Safe intersection sight distance was not relevant to the design criteria under AS 1742.2.
(b)Mr Grant Johnston's evidence was that he did not check safe intersection sight distance.
There are two reasons why ground 9 should not be upheld.
First, the prosecution at trial expressly accepted that the evidence did not support a conclusion that the Iowa intersection met the warrant for a stop sign in AS 1742.2 (prosecutor's closing submissions [71]). Even if the magistrate was wrong in the manner alleged, ground 9 is not arguable as a challenge to his decision. The conclusion the appellant now contests was conceded at trial.
Second, Ms Selby agreed with Mr Johnston's conclusion that, based on consideration of the stop sign warrants in AS 1742.2, a stop sign was not necessary or required, and a give way sign was adequate (Green AB 567, 3421). Ms Selby relied on information and measurements that were quite independent of those used by Mr Johnston (Green AB 536). The explanation for the source of this material was given by the prosecutor in his opening (Green AB 59).
Counsel for HWE also submitted on appeal that it was open to the magistrate to accept Mr Johnston's evidence and conclusion about sight lines on another basis that does not appear to have been considered by the magistrate at trial. I do not need to resolve the issues raised by that submission. The evidence before the magistrate supported a finding that, on consideration of the stop sign warrants in AS 1742.2, a stop sign was not required.
Ground 10 relies on the near miss incident, which I have discussed in detail when considering ground 4. It alleges:
The learned Magistrate erred in fact and law in finding that there was no previous history at the intersection which would require a stop sign to be installed (Reasons 20).
Particulars
There was a near miss incident at the Iowa intersection on 10 August 2006 in which the driver of a haul truck failed to give way to a light vehicle.
The facts relating to the incident in August 2006, to the extent they emerged in evidence, include that the Iowa intersection was then a cross road. Mr Dagg did not see the light vehicle driven by Mr Stephens, and may have been affected by the lights of an oncoming truck. While he did not see Mr Stephens' vehicle, Mr Stephens saw him in time to stop some distance away. The recommendations made as a result of this incident did not include installing a stop sign.
The appellant submitted that the court should infer that the magistrate relied on the evidence of Mr Johnston in making this finding, and submitted that it was not open to him to do so. Even if that is right, the appellant pointed to no evidence that anything in the earlier incident demonstrated that a stop sign was required. Certainly the earlier incident may have called for consideration of whether to install a stop sign, but that is a different matter. The earlier incident was one of the matters his Honour had to consider, but could not be elevated to a requirement that a stop sign be installed.
Leave to appeal on grounds 9 and 10 will be refused.

Grounds 12, 13, 14 and 15: the need for intersection warning signs

Ground 12 asserts that the magistrate erred in failing to consider and determine whether it was practicable to have installed advance intersection warning signs. It pairs with ground 14, which lists evidence relevant to whether HWE had failed in its duty by failing to install the signs.
The magistrate found that the mine was a 'closed worksite', open only to those who had been schooled in the road system. There were only two intersections on the Flood Bund Road at the material time. It followed that all persons permitted to drive in the pit area had familiarity with the Iowa intersection. Even those without a pit permit had carried out an induction, and would have been aware of the existence of the intersection. This included Mr Sargeant, who had been driven around the mine as a passenger on a number of occasions. The magistrate accepted evidence given by Mr McDonald that a driver familiar with driving a route would not observe warning signs because they are more familiar with the road environment than looking for warning signs (Blue AB 23).
The magistrate also specifically found that the intersection was not 'hidden'.
On those findings he concluded that there was no failure in not giving advance warning of the intersection and that such signs would have no use.
In ground 14, the appellant alleges the magistrate erred in law in failing to have regard to evidence that:
14.The learned Magistrate erred in law in failing to have any, or sufficient, regard to the evidence that:
(a)It was a term of the Yandi Mining Contract (9.35.3(e)) that the respondent use intersection warning signs.
(b)The respondent's Traffic Management Plan provided for the use of intersection warning signs.
(c)An independent study requisitioned by the State Mining Engineer from BHP Billiton Iron Ore Pty Ltd under s. 45 of the MSI Act found that there was little indication that an intersection was there for northbound light vehicle drivers and recommended that intersection warning signs be installed in order to provide prior warning of the intersection given poor forward visibility.
(d)A prohibition notice (Prohibition Notice 5133) issued by Senior Inspector of Mines O'Loughlin requiring an extensive review of, inter alia, the signage at the intersection by a competent person in road design resulted in the respondent obtaining a Road Safety Audit from ARRB which:
(i)found that the approach to the intersection was significantly curved and a driver arrived quite suddenly at the intersection after rounding the curve;
(ii)found that this was a problem because there needs to be adequate warning of the approach of an intersection and in the existing configuration there was not enough warning of the approach to the intersection; and
(iii)recommended the installation of intersection warning signs to provide suitable warning of the approach to the intersection.
(e)By letter dated 5 March 2010, in seeking to lawfully re-open the Iowa intersection, the respondent advised Senior Inspector of Mines O'Loughlin that, having regard to external advice from AECOM, and review of such advice by ARRB, it intended to re-open the Iowa intersection and in so doing would, inter alia, install intersection warning signs.
The references in (c) and (d) to the 'independent study' and the 'extensive review' are to the evidence of Ms Selby and Mr McDonald. Their opinions have no greater cogency because of the circumstances in which their reports were prepared.
The appellant characterised the evidence listed in ground 14 as evidence that intersection warning signs 'had utility', but none of it was considered by the magistrate in his finding.
The appellant also submitted that there was uncontroverted evidence that the intersection was 'hidden' and, in ground 13, challenged the magistrate's finding that it was not. It is convenient to deal first with that ground.
Ms Selby, said in her report that, at a point approximately 75 m south of the intersection, it is 'hidden' by the bunding and vegetation on the top of the bunding on the west side of the Flood Bund Road. At 125 m back from the intersection there is 'little indication that there is an intersection here' although one can see the point where the collision occurred (Green AB 3241). In her evidence‑in‑chief, Ms Selby said she did no measurements to work out how far back it became difficult to see the intersection (Green AB 543).
In some areas, she made concessions in her cross‑examination. She agreed that a driver on the Flood Bund Road would see a haul truck approaching the intersection because of the size of a haul truck (Green AB 562), that the vegetation might not have been the problem she believed when she wrote her report (Green AB 563), and that she had never driven towards the intersection herself (Green AB 564). She accepted that the driver of a light vehicle would have a higher vantage point than the eye height on which she based her conclusion (Green AB 565). But, in cross‑examination, Ms Selby also repeated that visibility on the Flood Bund Road was restricted and you could not see the intersection (Green AB 559).
In his report, Mr McDonald said that a driver 'arrives quite suddenly at the intersection after rounding the curve' and there is not enough warning of the approach to the intersection (Green AB 3188). Mr McDonald said, in oral evidence, that signs warning of the intersection 'would have been appropriate' (Green AB 584). Counsel for HWE submitted that Mr McDonald did not say the intersection was 'hidden' or 'obscured'. But the effect of his evidence is that some warning of the intersection was required, even if he did not use the word 'hidden'.
HWE challenged the evidence of Ms Selby and Mr McDonald on the basis that neither of them had previously investigated a mine collision, and neither had experience with iron ore mines in Western Australia. It did not demonstrate why experience at mine sites was necessary to make the observations relied on by the appellant, and I am not satisfied that it was.
There was little other evidence on this question. Mr Johnston did not consider the same question as the prosecution experts. He considered whether a driver on the Flood Bund Road could see a haul truck as it approached on the Iowa ROM Road, rather than the visibility of the intersection itself. One of the employees who gave evidence, John Shaw, said, 'Pretty much you couldn't see anything until you actually came up to the intersection' due to the windrow and the vegetation on top of it, and the curvature of the road (Green AB 303). He was speaking of approaching the intersection in a light vehicle. Mr Watt commented that a windrow was as high as a light vehicle, so the driver would not have the same ability to see (Green AB 258). None of the other drivers who gave evidence said the intersection was hidden to a vehicle approaching from the south on the Flood Bund Road, although it does not appear that any of them was asked. The focus of their evidence was whether the driver of the truck should have seen the light vehicle.
Counsel for HWE referred the court to photographs that were in evidence (exhibit 1.4, and 1.6). I cannot draw any conclusion from the photographs reproduced in the Appeal Books. The magistrate did not say whether he relied on them.
The primary reason the magistrate gave for finding the prosecution had not proved its case on particular (d) was the utility of warning signs in a closed road system. The finding challenged in ground 13 was part of the magistrate's reasoning to that conclusion. If his Honour meant that the intersection was clearly visible as you approached it, the finding was a rejection of Ms Selby's evidence, but the reasons do not disclose why he rejected it. The reasons do not say anything about the evidence of Mr Shaw and Mr McDonald that there is little warning of the intersection. If the magistrate has accepted other evidence that the intersection could be seen as you approached it, he has not said what that evidence is or why he has accepted it.
In my opinion, ground 13 has been established.
The evidence discussed with regard to ground 13 is also relevant to ground 14. As a starting point in the consideration of this ground, several matters were not disputed: the intersection was on a curve and the two roads did not meet at right angles, HWE had not installed intersection warning signs on the approach to the intersection, and there was no other warning of it. The Iowa ROM Road had not been used for about a year until about two days before the accident, a finding his Honour made but did not refer to in this context. There was other evidence from the employee witnesses, relevant to the use of the Iowa ROM Road and the Iowa intersection, to which his Honour did not refer: John Vickers said that 'we' (I assume the workshop staff) used the Iowa ROM Road very rarely (Green AB 145); Milan Lazic said it was very rarely used (Green AB 159); Lindsay Gilbert said the intersection had been used over the years, but not very often, and he was not aware it was being used on the day of the accident (Green AB 192); the haul truck drivers said the route used on the day of the accident was uncommon (for example, Mr Lait at Green AB 270, Mr Puddey at 426); Albert Schaus, the project manager, described using the Iowa ROM Road as a 'very unusual run' (Green AB 467).
It must also be accepted that HWE's employees were exposed to a hazard at the Iowa intersection, the degree of risk of injury occurring was never determined. Whether that risk would be lessened by signs warning of the intersection was not considered. Whether the extent of the employer's duty included a duty to install warning signs could not be properly decided without considering those matters. The magistrate's finding that it was a 'closed' work site could not, in the light of the uncontradicted evidence, be a sufficient basis to decide.
HWE submitted that the use of warning signs after the accident, and the later introduction of a revised Traffic Management Plan have no probative value. The submission overstates the position. The fact that, with hindsight, a measure is introduced does not prove that it was practicable to implement that measure before the accident. Nor does the fact that a measure is recommended or introduced prove that it was necessary, or would have had an effect on safety. But the later introduction of a measure may be evidence, at least, that it was available and affordable, and may also be evidence that it was a suitable step for the employer to have taken earlier. It should have been considered.
In its submissions on appeal, HWE supported the magistrate's finding on another basis. It submitted that, on the evidence of Mr Johnston, a sign warning of the intersection would not have been of any utility because it would not have affected the response time of a driver on the Flood Bund Road (Green AB 699 ‑ 700, 702). Mr Johnston was speaking about the response time for a driver after seeing a hazard - in this case, the time for a driver to respond after seeing a haul truck is not going to stop but is going to enter the intersection. That evidence may have been a relevant matter for the magistrate to weigh up. The magistrate did not refer to it and did not say whether he accepted it.
The respondent also submitted that the use of warning signs would not have resulted in a different outcome in this case, because Mr Sargeant must have been aware of the intersection. He must have driven through it earlier (he was returning to the workshop), and he was following Mr Watt's truck which turned at the intersection. Mr Sargeant's knowledge may be relevant to the cause of the accident which resulted in his death. It does not assist in determining whether the signs were a practicable means of mitigating the risk for drivers of light vehicles approaching the intersection.
I will grant leave and uphold grounds 12 and 14. Again grounds 1 and 2 are relevant to these later grounds.
Ground 15 alleges that the magistrate erred in fact and law in finding that intersection warning signs had no utility at the mine because there was a pit permit system and only two intersections on the Flood Bund Road. The essence of the ground is found in the particulars, which repeat the five matters alleged in ground 14, and add:
(a)There were 120‑130 intersections at the mine.
(d)The pit permit system did not ensure that drivers in the mine had adequate warning of each intersection they approached while driving in the mine.
(e)Intersection warning signs had utility for any individual driving at the mine that could benefit from being alerted to the danger ahead.
(h)After the accident, the respondent adopted Mine Haul Road Geometric Design Guidelines prepared by AECOM which provided (11.1) that because haul roads are used by operators that travel on them on a daily basis the use of warning signs could be restricted to sections of haul road that were most critical, for example where design parameters had not been met due to a constraint.

Having regard to my conclusions on the other grounds relating to the intersection warning signs, it is unnecessary to determine this ground. It adds nothing.
I would grant leave on grounds 12, 13 and 14, and uphold those grounds.

Grounds 16 and 17: the need for haul road usage signs

Both these grounds allege error of law and fact:
16.The learned Magistrate erred in fact and law in failing to consider and determine whether it was practicable for the respondent to have mitigated the risk of collision at the Iowa intersection by installing signs notifying haul road usage.
17.The learned Magistrate erred in fact and law in finding that signs notifying of haul road usage would be totally superfluous to safety.
The magistrate's findings can be separated into two strands. First, that Mr Sargeant must have known that haul trucks were operating on the particular roads because he was driving behind Mr Watt's haul, and that truck turned left into the Iowa ROM Road. The second strand is of wider relevance. The magistrate said that haul trucks were in constant motion in the pit area and their size and movement was obvious to any observer. He described the movement of haul trucks about the mine as part of its reason to exist.
These findings are, in part, supported by evidence. At the time of the accident, there were three haul trucks in the immediate area, including that driven by Mr Watts. An estimate was made in one document of about 1800 haul loads a day, every day (Green AB 3214). The witnesses, Messrs Schaus and Darcey, gave evidence to that effect (Green AB 491, 523). The size of the trucks was constantly referred to in the evidence, and I have set out the dimensions of the truck driven by Mr Redmond earlier in these reasons. The roads were wide, 24 and 28 m wide, to accommodate the size of the trucks.
The appellant does not challenge the specific findings about truck size and movement, but argues that the conclusion that signs were superfluous is overly simplistic and overlooked other evidence. In my opinion, the findings of the magistrate were inadequate and, to a degree, not responsive to the case he was to decide.
The prosecution case was not that signs were required to advise drivers that haul trucks used the road system in the mine. The allegation in particular (e), and the evidence led by the prosecution, was more specific, and was directed to signs warning drivers on the Flood Bund Road in advance of the Iowa intersection. The further particulars supplied by the prosecution on 10 August 2012 identified the information that ought to have been conveyed in the signs as 'watch for trucks' or 'trucks entering' on the approach to the intersection (Blue AB 30).
The appellant refers to evidence that HWE identified that warning signs would be suitable to prevent a recurrence following the incident at the Iowa intersection in 2006, and describes that evidence as critical. That evidence strongly qualifies the evidence on which his Honour relied about the movement of haul trucks on the Yandi site.
Kingsley Holloway, who was mine superintendent at the time, wrote in an incident report form on 10 August 2006, 'More care to be taken when approaching intersections and signage saying trucks crossing may be a help'. He was asked to explain why, and said 'the more information you can give somebody that's using the road, the better' (Green AB 371). Mr Holloway gave other evidence of more probative value. In particular, he was cross examined about the need for signs. Counsel for HWE asked him whether trucks were not on the roads every minute of every 24 hour cycle. Mr Holloway replied, 'They're on road, but depending on what roads you're using. There might be roads that you don't use for months' (Green AB 379).
Ms Coleman, who was alternate project manager at Yandi, approved the use of haul road signs after the incident in 2006. She described them as good corrective actions (Green AB 385).
Ms Selby recommended such signs, and intersection warning signs, to provide prior warning of the intersection 'given the currently poor forward visibility' (Green AB 3255). I have referred to other evidence of the poor visibility of the intersection when approaching it, in relation to grounds 13 and 14.
Ms Selby agreed in cross‑examination that the number of truck movements was relevant to the need for warning signs, and that she did not know the detail of those movements (Green AB 556). Counsel for HWE was dismissive of her evidence on this basis. He was, however, putting to her the absolute number of truck movements in all parts of the mine, perhaps rhetorically (certainly inaccurately) suggesting a truck on every road for every minute of every day. That proposition missed the point that warning signs may be a suitable measure to mitigate risk for particular areas of the mine in particular circumstances, including where a road or intersection is little used or has only recently been re-opened. The absolute numbers of truck movements on each day says little about whether particular roads were being used, and with what frequency, at any time.
Ms Selby had reported that that, while the Flood Bund Road was the main route to and from the pits and the only route servicing this part of the mine site, the traffic on the Iowa ROM Road varied depending on operational factors, and may vary from time to time (Green AB 3236). In discussing ground 14, I have set out some of the evidence of other witnesses to the effect that the Iowa ROM Road was rarely used and had been little used in the months before September 2008. The magistrate found that it had only been used by haul trucks for about two days before the accident, and before then had not been used for about a year. All of this evidence had to be considered in determining whether the signs were a practicable measure to meet the employer's obligation. The magistrate discussed none of it. He appears to have dismissed the significance of his own finding about the recent re‑opening of the intersection by referring to evidence that Mr Sargeant knew haul trucks were operating there (Blue AB 23). Mr Sargeant's knowledge may be relevant to causation. It does not assist on whether a sign would have made the intersection safer.
The magistrate made no findings on whether, or to what extent, he accepted Ms Selby's evidence, or any of the other evidence about the use of the Iowa intersection and Iowa ROM Road. He made no findings about the evidence of Ms Coleman and Mr Holloway. He could not properly find that the signs were totally superfluous without considering that evidence.
Mr Johnston was dismissive of the benefit of signs within the area of the mine itself, where an individual would expect to see haul trucks (Green AB 699 ‑ 700). He was not asked about signs in areas recently opened or re‑opened.
This leads to the more general question in ground 16. His Honour did not consider whether, in the light of all of the evidence, it was practicable for the respondent to have mitigated the risk of collision at the Iowa intersection by installing signs warning of haul trucks. His finding that the signs were totally superfluous, in effect, wrongly closed further consideration on particular (e).
Leave should be granted on grounds 16 and 17, and each ground upheld.

Grounds 18, 19 and 20: the findings on particular (f)

18.The learned Magistrate erred in fact and law in failing to consider and determine whether it was practicable for the respondent to ensure that Mr Sargeant did not drive at the Iowa intersection where he could interact with surface mobile equipment without driver training and experience in relation to such interaction.
19.The learned Magistrate having correctly found that:
(a)Mr Sargeant's work did not involve him driving in the pit area;
(b)Mr Sargeant had no good and valid work related reason to be driving in the pit on the day; and
(c)Mr Sargeant did not have a pit permit,

should have found that there was a failure by the respondent to ensure that Mr Sargeant did not drive at the Iowa intersection.
20.In considering whether the respondent failed to provide driver training and experience to Mr Sargeant in the event of wilful disobedience, the learned Magistrate erred in law in his construction of s 9(1)(b) of the MSI Act in finding that the duty of employers at mines (under s 9 of the MSI Act) is confined to providing information, instruction and training to, and supervision of, employees performing their duties but not otherwise.

I will first consider ground 20.
The magistrate found that Mr Sargeant acted without authorisation and contrary to express directions when he drove in the pit area; his duties 'did not involve driving in the pit area at all, at any time'; and his supervisor would not have allowed him to do so. None of those findings is challenged. He continued:
[Is] the accused required to foresee that a worker will or might be wilfully disobedient, and then to train him for that disobedience, in preparation for the day upon which the disobedience will occur? I think not. It would not be reasonable or practicable to do so. It should be noted that section 9(1)(b) of the MSIA required the employer to provide such information, instructions and training to, and supervision of, employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards. (original emphasis) (Blue AB 9)
His Honour's remarks were directed to a particular issue. On a fair reading of the reasons, the remarks regarding wilful disobedience were directed to whether the Act required HWE to train Mr Sargeant to drive in the pit when his work did not involve driving in the pit 'at all, at any time'. His Honour was not purporting to give a comprehensive statement of the duties of employers but to address a particular factual allegation.
In my opinion, ground 20 does not accurately reflect the magistrate's reasons. The error alleged has not been demonstrated. Leave on the ground is refused.
Grounds 18 and 19 require consideration of whether particular (f) included an allegation of failure to supervise to ensure that Mr Sargeant did not drive without permission. The particular is not clearly expressed. This appeal can be determined on other grounds, and without resolving the dispute between the parties about whether the appellant had limited the possible scope of its case by representations made to the solicitors for HWE before trial. I do not have the evidence to properly decide that question, when it includes determining what was reasonable for each party to understand in the circumstances of their pre‑trial discussions. I could require the parties to provide evidence on affidavit, but the delay and expense of that course are not justified when the appeal must be allowed and the matter must be remitted to the Magistrates Court for redetermination. If there was a misunderstanding between the parties about what was said before the first trial, it can be resolved and the hearing can proceed fairly to both parties.

Grounds 21 and 22

Ground 21 alleges error in failing to consider and determine whether contravention by the respondent of s 9 of the Act caused the death of Mr Sargeant. Because his Honour found that the prosecution had not proved that HWE failed to meet its duty, the question of causation did not arise. It is not necessary to decide ground 21.
Ground 22 alleges error in fact and law in failing to convict the respondent of the charge. Its purpose was to ground a submission that the court should substitute a conviction, rather than remit the matter for retrial. At the hearing, counsel for the appellant accepted that this court is not in a position to substitute a verdict, and the proper order is for a retrial. Despite the obvious convenience and savings that follow if a final determination could be made on appeal, I agree that the court should not attempt to determine the charge. The magistrate did not make sufficient findings of fact to permit that to be done. To make the necessary further findings on appeal would require an evaluation of whether and to what extent the court should accept the evidence of the expert witnesses. It was clear on the hearing of the appeal that HWE challenges the evidence of Ms Selby generally. Her evidence is significant. I am not in a position to make the credibility findings required to determine whether, or to what extent, her evidence should be accepted.

Conclusion

For these reasons I grant leave on grounds 1, 2, 5, 7, 8, 11, 12, 13, 14, 16 and 17.
I allow the appeal on grounds 1, 2, 8, 11, 12, 13, 14, 16 and 17.
The matter should be returned to the Magistrates Court for retrial. The court should be constituted by a different magistrate.