Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Morrison v Cumnock No.1 Colliery Pty Ltd [2004] NSWIRComm 151 revised - 09/06/2004 PROSECUTOR Inspector Rodney Morrison PARTIES : DEFENDANT Cumnock No.1 Colliery Pty Ltd FILE NUMBER: 5412 of 2001 CORAM: Marks J CATCHWORDS : Occupational health and safety prosecution - guilty plea to amended charge - fatality - serious offence - simple and obvious way of removing foreseeable risk - subjective factors considered in determining penalty - whether plea entered at first reasonable opportunity - discount applied to penalty. LEGISLATION CITED : Occupational Health and Safety Act 1983 s15(1) Sentencing Act 1995 (WA) CASES CITED : Cameron v The Queen [2002] HCA 6 R v Thompson, R v Houlton [2000] NSWCCA 309 HEARING DATES: 05/14/2004 DATE OF JUDGMENT: 06/04/2004 PROSECUTOR Mr Gleeson QC with Mr Scott of counsel Solicitor: Mr P Thompson Moray and Agnew Solicitors LEGAL REPRESENTATIVES: DEFENDANT Mr Hodgkinson SC with Mr Shume of counsel Solicitor: Mr P Cutrone Sparke Helmore JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Friday 4 June 2004 Matter No IRC 5412 of 2001 Inspector Rodney Morrison v Cumnock No.1 Colliery Pty Ltd Prosecution under s.15(1) of the Occupational Health and Safety Act 1983 JUDGMENT NSWIRComm 151 1 By amended order made at the hearing of these proceedings on 14 May 2004 the defendant, Cumnock No.1 Colliery Pty Ltd, was charged with a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). The defendant entered a guilty plea. The proceedings were instituted by the prosecutor, Rodney Morrison, on behalf of the Department of Mineral Resources. The particulars of the charge contained in the amended order are as follows: (a) The defendant failed to provide and maintain plant for use at work, to wit a continuous mining machine model 12CM29WH, serial number 6522 ("CM3"), which was safe and without risks to health by reason that the control levers of the control bank situated on the forward driver's side of the CM3 were located in such a position as to expose the control levers to risk of inadvertent operation by the operator resulting in a risk of injury from a pinch point created between the drill rig and the body of the CM3. (b) The defendant failed to make any or any adequate arrangements for the safety of its employees in conducting maintenance on the CM3 in that the defendant failed to move the control valve bank for drill rigs to a position higher and further away from the drill rigs so that persons performing the work performed by Mr Borkowski on 23 August 1999 could not inadvertently operate the control valve bank handles with their belt or any other attachments to the belt. As a result of the defendant's failure, Eugene Borkowski was placed at risk of injury and suffered fatal injuries. The factual particulars of the charge are as follows: (c) At all material times, the defendant operated a coal mine known as Cumnock Colliery No.1 Colliery at Pikes Gully Road, off the New England Highway, Ravensworth, NSW ("the mine"). (d) At all material times the defendant was an employer. (e) At all material times Eugene Borkowski was employed by the defendant as a fitter/welder (f) On 23 August 1999, Mr Borkowski, in the course of his employment, was engaged in maintenance work on a continuous mining machine, model 12CM29WH, serial number 6522 ("CM3"). Mr Borkowski had greased the grease nipples of the drill rig on the driver's side. It is not known when CM3 was re-powered. Mr Borkowski inadvertently moved the control level situated on the forward driver's side of CM3 with the result that the mast of the right-sided hydraulic roof-bolting machine (drill rig) moved so as to reduce the space between the main body of CM3 and the said mast. In addition, a part of the machine known as a drill pot rose in height, coming into contact with Mr Borkowski's body. Mr Borkowski was, as a consequence of these two actions, pinned between the mast of the driver's side of the hydraulic roof bolting machine and the main body of CM3 with the driver's side drill pot pressuring his body. As a result, Mr Borkowski was fatally injured. 2 A statement of agreed facts was tendered into evidence together with photographs and, on behalf of the defendant, a lengthy affidavit of David Mellows, group safety manager of Xstrata.col.nsw. The defendant company is a part of a group of companies within the Xstrata corporate group. 3 The statement of agreed facts is in the following terms: 1. At all material times the Informant was the assistant director of performance improvement at the Department of Mineral Resources and person who has received the written consent of the Director General of the Department of Mineral Resources to institute the within proceedings. 2. At all material times the defendant, Cumnock No. 1 Colliery Pty Limited [ACN 051 932 122] ("the defendant") was a company duly incorporated with its registered office at Level 5, National Australia Bank House, 255 George Street, Sydney in the state of New South Wales. 3. At all material times the defendant conducted its business of coalmining from an underground coal mine known as the Cumnock No. 1 Colliery at Pikes Gully Road, off the New England Highway, Ravensworth in the state of New South Wales ("the mine"). 4. At all material times the defendant was an employer and employed Mr Eugene Borkowski as a fitter/welder to work for it at the mine. 5. Mr Borkowski had been employed as a fitter/welder at the mine for approximately 25 years prior to the incident. 6. Situated at the defendant's premises was continuous miner known as the CM3 ("CM3"). (refer attached photographs 1.34 and 1.35). 7. CM3 was supplied to Cumnock No. Colliery in September 1995. 8. CM3 was manufactured by Joy Manufacturing Pty Ltd ("Joy") and was used for the development of roads prior to the extraction of coal. 9. CM3 was originally supplied to the former owners of the mine, Elcom Collieries Pty Ltd as a Joy 12 HM7 miner. 10. In September 1995 the 12HM7 was converted into a 12 CM29 continuous miner by Joy and returned to Cumnock. CM3 was supplied to the defendant with hydraulic roof bolting machines manufactured by Hydramatic Engineering Pty Ltd ("Hydramatic") ("the drill rig"). 11. The CM3 was originally supplied to the defendant with a hydraulic roof-bolting machine ("the drill rig") attached to it. (refer attached photograph 1.33) 12. The roof bolting machines are designed to drill holes into the roof of the mine in order to install roof bolts to secure the roof of the mine and prevent collapse. 13. On each side of the continuous miner there are valve banks with three handles which operate the functions of the drill rigs. (refer attached photographs 1.26,1.27 and 4.7) 14. The three handles on the value bank control different aspects of movement of the drill rig including the movement of the drill rig towards the face of the mine, away from the face of the mine, towards the rib of the mine, towards the machine itself and to raise and lower the drill pot mounted to the drill rig. The drill pot is the portion of the drill rig which holds the drill steels etc and provides upward and downward movement and rotation 15. At 7.00am on 23 August 1999 Mr Borkowski attended work at the mine and was assigned to work as the fitter in Main Gate 15 development panel 16. Main Gate 15 panel consisted of two adjacent headings being driven. The heading on the left hand side when looking inside is referred to as 1 heading and the heading on the right hand side is referred to as 2 heading. 17. Mr Borkowski was given two work orders (numbered 3302 and 33152) by his supervisor, Les Ross, which set out maintenance tasks to be performed in the panel. The tasks set out in these work orders included "grease all points" and "grease drill pots" and included a direction that the machine be isolated at the main isolator and personal danger tags attached. 18. The work order required that all work, including isolation and tagging, should be carried out in accordance with the Cumnock safety procedures. 19. Mr Borkowski was not the normal fitter assigned to Main Gate 15 but had worked there on several prior occasions including three other shifts in the month of August 1999. 20. The panel was set up with a continuous miner and one shuttle car in each heading. The continuous miner in 1 heading was known as CM1 and the continuous miner in 2 heading was known as CM3 21. At approximately 12.00pm Andrew Buchan, surveyor, attended the face of 2 heading to carry out some survey work with a laser. A laser is a device mounted on the roof of the heading and projects a beam along the heading into the face. Its purpose is to ensure that the headings are driven in a straight line. CM3 was in close proximity to the face and the shuttle car was parked just outbye of it. The driver side drill rig mounted on CM3 was fully tilted back towards the driver's cabin and outwards towards the rib. 22. As Andrew Buchan was arriving to set up, the mining crew left the face and went to crib. At this stage there were no other persons present in the vicinity of CM3. 23. In order to carry out his work it was necessary for Andrew Buchan to climb onto the top of CM3. Prior to carrying out the survey work, he isolated the electrical power to the continuous miner by turning the circuit breaker handle in the driver's cabin to the off position and removing the handle. He kept the isolation handle on his person whilst he was on top of CM3. (refer attached photographs 2.1 and 4.12). 24. Whilst Andrew Buchan was carrying out survey work on top of CM3 Mr Borkowski walked to the face carrying two tins of oil and proceeded to pour the oil into a port located on the continuous minor. 25. A short time later Andrew Buchan completed his work on top of CM3 and placed the isolation handle on the driver's seat of CM3. He did not restore power to CM3. 26. Andrew Buchan then borrowed a shifting spanner from Mr Borkowski so that he could use it to move the laser. The laser was situated approximately 60m outbye of CM3. 27. Andrew Buchan then left the face area and moved the laser just outbye of the shuttle car at the rear of CM3. 28. Whilst he was aligning the laser Andrew Buchan noticed Mr Borkowski's silhouette. He appeared to be leaning over near the drill rig on the driver's side in towards the body of CM3. 29. Andrew Buchan did not notice whether Mr Borkowski appeared to be moving or not at this stage. 30. After completing setting up the laser Andrew Buchan walked up to CM3 so that he could return the shifting spanner to Mr Borkowski. He then noticed that Mr Borkowski was pinned between the hydraulic roof-bolting machine mounted on the driver's side of CM3 and the control valve bank lever for drill rig. Andrew Buchan checked Mr Borkowski for signs of life but could not detect any. 31. Andrew Buchan estimated that from the time he last saw Mr Borkowski alive to the time he discovered Mr Borkowski pinned at approximately 12.50pm, was ten to 15 minutes. 32. Mr Borkowski had greased the grease nipples of the drill rig on the driver's side. It is not known when CM3 was re-powered. Mr Borkowski inadvertently moved the control lever situated on the forward driver's side of CM3 with the result that the mast of the right-sided hydraulic roof-bolting machine (drill rig) moved so as to reduce the space between the main body of CM3 and the said mast. In addition, a part of the machine known as a drill pot rose in height, coming into contact with Mr Borkowski's body Mr Borkowski was, as a consequence of these two actions, pinned between the mast of the driver's side of the hydraulic roof bolting machine and the main body of CM3 with the driver's side drill pot pressuring his body. 33. At the time Mr Borkowski was found by Andrew Buchan there was power to the hydraulic bolting rigs, the machine was not isolated and tagged off and Mr Borkowski's body was blocking the drill rig control valve bank. This prevented Andrew Buchan from being able to move the hydraulic roof bolting machine and free Mr Borkowski. 34. There was a grease gun lying on the ground near where Mr Borkowski was pinned. Later inspections revealed the presence of fresh grease on some of the grease nipples on the drill rig. 35. Andrew Buchan then contacted Paul Langley by radio and informed him of the emergency. Paul Langley then informed persons who were in the crib room of the situation and Bruce Moore, Shane Gover, Lee Courtney and Paul Langley then attended the scene of the accident. 36. On arrival at the scene Bruce Moore observed Mr Borkowski was pinned between the mast of the drill rig and the control valve bank mounted on the continuous miner. His chest area was pressed against the cover plate over the control valve bank and his feet were suspended approximately 450mm from the foot. The drill pot was thrusting against Mr Borkowski's body at approximately hip height and the timber jack was at full extension. 37. Two continuous miner operators were able to free Mr Borkowski by lifting his lower body between them whilst Shane Gover reached in with his right hand and operated the control valve bank causing the drill rig to tilt away from Mr Borkowski. 38. After Mr Borkowski's body was freed, CPR was administered by the persons present in the panel and later by ambulance officers but they were unable to revive him. Mr Borkowski's body was then taken to the surface. 39. Each continuous miner had a separate crew assigned to it but the mine deputy, Mr Bruce Moore and the fitter, Mr Borkowski, had responsibility for both of the headings and the machinery in them. 40. The CM3 was examined at the request of the Department of Mineral resources following the incident. The report found that: (a) The functions of the continuous miner and the machine mounted drill rigs were found to operate as designed and without fault. 41. There was an accident at the Tower Colliery on 8 July 1991 where a miner was trapped between the body of a Joy 12CM20 continuous miner and the machine mounted drill rig, following inadvertent operation of the control levers which caused the drill rig to move. 42. The Department of Mineral Resources had issued an industry wide safety alert to all mine managers, including the defendant with respect to machine mounted drill rig injuries in Departmental Circular C93/0298 dated 19 September 1995. (see attached appendix 5.1) 43. The Department of Mineral Resources had issued an industry wide safety alert to all mine managers, including the defendant, with respect to the risk of inadvertent operation of the controls of the same type of continuous miner as the CM3 due to the failure to isolate the machine, in Safety Alert SA 99/12 dated 14 July 1999. (see attached appendix 4.10) 44. The defendant failed to move the control valve bank for drill rigs to a position higher and further away from the drill rigs so that persons performing the work performed by Mr Borkowski on 23 August 1999 could not inadvertently operate the control valve bank handles with their belt or any other attachments to the belt. 45. Following the incident the defendant re-located the control valve bank for drill rigs to a position higher and further away from the drill rigs so that persons performing the work performed by Mr Borkowski on 23 August 1999 could not inadvertently operate the control valve bank handles with their belt or any other attachments to the belt. (refer attached photographs 1.36 and 1.37) 46. The Defendant cooperated with the Department of Mineral Resources. 4 The agreed statement of facts does not provide an accurate description of the valve banks on the machinery as at the date that the incident occurred. They are described in paragraph 13 and 14. The photographs provide an aid to an understanding of their physical shape and operation. It is important to add some further information which was contained within the affidavit of Mr Mellows and which was the subject of elaboration by Mr B Hodgkinson SC who, together with Mr Shume of Counsel, appeared for the defendant. The handles had in fact been modified prior to the incident. They had been shortened and bent at right angles to ensure that they could not become interlocked with each other. Each of the handles operated on a spring mechanism so that when not being manipulated they sprang back into a central neutral position. In order to use the handles for the purpose of activating each of the operations controlled by each handle, it was necessary for a degree of pressure to be applied and for the handle to be manipulated in a particular direction. Each handle could be manipulated in four different directions. 5 It is obvious from the description contained within the agreed statement of facts that there can be no certainty as to the precise circumstances which led to Mr Borkowski's death. The most plausible explanation, as accepted by both the prosecutor and the defendant, was that in some way, some item of Mr Borkowski's safety equipment had come into contact with one of the handles and had caused it to operate. It was asserted that this could have happened if Mr Borkowski had brushed against the handles whilst working near the machinery. 6 Nevertheless, if the hydraulic equipment had been isolated and therefore rendered inoperable whilst Mr Borkowski was carrying out his work on the machinery, the incident would not have occurred. There was evidence to the effect that the defendant had in place systems of work and instructions which required employees to isolate the operating paths of equipment whilst carrying out work on it. There was evidence also that Mr Borkowski had been trained in these procedures and understood them. In these circumstances it is curious why Mr Borkowski would have carried out the work without ensuring that the equipment was isolated. This is particularly so as it is clear that Mr Buchan, whose involvement is set out in paragraphs 21 to 35 of the agreed statement of facts, had himself isolated the equipment by removing the circuit breaker handle. No other person was in the vicinity of the machinery, so it may be assumed that Mr Borkowski himself re-inserted the handle and therefore reversed the isolation of the hydraulics which allowed the equipment to operate. 7 Ultimately, of course, as I have already observed, if the defendant had relocated the control valve bank as alleged in the charge, the machinery would have been rendered more safe and this would have precluded any accidental operation in the circumstances which are presumed to have applied in the case of this incident. 8 The prosecutor relied on the issue of an industry-wide safety alert dated 19 September 1995 as referred to in paragraph 42 of the agreed statement of issues. It had also issued an alert dated 14 July 1999 referred to in paragraph 43. That documentation refers to a number of incidents involving injuries to employees in mines resulting from the use of continuous miner equipment. There is certainly reference to the requirement to avoid operators coming into unintended contact with controls whilst operating the machinery and to the guarding of controls to avoid them being accidentally bumped by an operator or activated by falling roof or rib material. Mr Hodgkinson submitted that the particular circumstances referred to in this documentation was not directly related to the circumstances which applied in this particular incident. Nevertheless, there is sufficient in this documentation to alert coal mine operators of the need to exercise vigilance and forethought in terms of what might conceivably create a risk to the health, safety and welfare of employees. 9 The first task in assessing an appropriate penalty is to consider the objective seriousness of the offence. In my opinion the offence is a serious one. The fact that Mr Borkowski died is an indication of the consequences which might flow from a breach of the Act, although not itself determinative as to whether the offence is a serious one. It is obvious that the moving of the controls to a position which would have precluded contact by a person carrying out work of the kind being performed by Mr Borkowski would have removed the risk of injury. This was a simple and obvious way to overcome a foreseeable risk. Any question of isolation of the hydraulic system is secondary to this factor. Accordingly, I agree with the prosecutor that the offence should be characterised as a serious one. 10 It is unnecessary that I traverse the many decisions of this court, particularly at appellate level, which deal with the importance of the Act in terms of the working and social milieu within New South Wales. Even though the mine where this incident occurred is no longer functioning, there nevertheless remains the necessity to take into account the general deterrent factor which is an essential ingredient in the fixing of an appropriate penalty. 11 There are, however, a number of subjective factors which I am required to take into account in favour of the defendant when fixing the penalty. It was accepted by the prosecutor that the defendant co-operated with it in terms of the prosecution investigation of the incident and that the defendant has expressed contrition as to what happened. In addition the defendant has assisted the family of the deceased employee. 12 Furthermore, the defendant has no prior convictions and, as is obvious from the evidence of Mr Mellows, had directed its attention to, and was conscious of its obligations with respect to, the requirements of the Act. Mr Mellow's affidavit traversed in great detail the commitment of the defendant to its occupational health and safety obligations and the systems and methods utilised by the defendant in order to comply with those obligations. I am satisfied that this defendant did not only create systems "on paper" but ensured that its systems were implemented throughout its workforce in a pragmatic fashion. There is evidence also that the defendant rectified the deficiency in the machinery by relocating the control levers after the incident and that it took other steps to reinforce, in particular, the need to isolate equipment whilst it was being worked upon. Finally, there is evidence that Mr Borkowski had been thoroughly trained in the need to isolate the equipment. 13 The only real contention between the parties was the application of a discount to any penalty by reason of the entry of a plea of guilty. In normal circumstances, where a defendant enters a plea of guilty at the earliest opportunity the defendant will be entitled to a discount on sentence in the range of 10% to 25%. If authority is still required for this principle which is applied throughout New South Wales, I refer to the judgment of the New South Wales Court of Criminal Appeal in R v Thompson; R v Houlton [2000] NSWCCA 309. The debate in these proceedings arose because of the timing of the indication that a plea of guilty was to be entered. The proceedings were originally instituted in August 2001 and were amended in a substantial manner in March 2003. They were further amended, as I have indicated, at the commencement of these proceedings, again in a substantial way. I was informed in general terms from the bar table that these amendments followed a series of negotiations between the parties which led to the entry of a plea of guilty to the most recent manifestation of the order. In these circumstances, is the defendant entitled to a discount for having entered a plea of guilty and, if so, to what extent? Counsel undertook to forward written submissions about this. They had not been received at the time that I commenced to prepare this judgment and accordingly I have undertaken my own research. The matter appears to have been dealt with authoritatively in the joint judgment of Gaudron, Gummow and Callinan JJ in the High Court of Australia in Cameron v The Queen [2002] HCA 6. Although the court in that case was dealing with provisions of the Western Australian Sentencing Act 1995 the approach taken must, as a matter of common sense, apply to the circumstances of these proceedings. At paragraph 19 in the joint judgment their Honours posed the question as to whether it was possible to enter a plea at an earlier time than when entered. In the joint judgment it was concluded that where there is a process of negotiation leading to the entry of a plea of guilty to an amended charge then, if that plea is entered upon the completion of those negotiations, this will be considered to be the entry "at the earliest possible opportunity" for the purpose of the sentencing legislation. In a separate judgment, Kirby J agreed with this reasoning. His Honour said: "The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly". (at paragraph 75). 14 Having regard to the principles enunciated in Cameron, I am of the opinion that the defendant in these proceedings is entitled to a discount on penalty of 25%, it having entered a plea at the earliest reasonable opportunity. 15 The maximum penalty is $550,000. Having taken into account the objective seriousness of the offence and the need for both specific and general deterrence, an appropriate penalty is, in my opinion, the sum of $190,000. To this amount I apply a further discount of 35% being a discount for early plea of guilty of 25% and a further 10% for the other subjective factors which I have identified. 16 The prosecutor has sought orders for costs and a moiety which were not opposed. ORDERS 1. The defendant is found guilty of the offence charged and is convicted accordingly. 2. The defendant is fined the sum of $123,500 with a moiety to the Department of Mineral Resources. 3. The defendant is to pay the prosecutor's costs in an amount assessed by the court in default of agreement. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.