Industrial Relations Commission of New South Wales in Court Session CITATION : Rodney Morrison v Tahmoor Coal Pty Ltd. Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 [2002] NSWIRComm 327 PROSECUTOR: Rodney Morrison PARTIES : DEFENDANT: Tahmoor Coal Pty Ltd FILE NUMBER: IRC No 4867 of of 2001 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 15(1) - employee drowned - no witness to events immediately beforehand - prosecution case focusses on accident - identified risk is risk of drowning - no act or omission of the employer causally connected to the identified risk - system of work and safety measures identified - summons dismissed. CATCHWORDS : Occupational Health and Safety Act 1983 - s 33 s 39 - associated safety legislation permits adequately trained employee to work unaccompanied when working underground in a mine - authorised employee drowns - no offence under s 15(1) if act or omission expressly permitted under associated legislation. Occupational Health and Safety Act 1983 s 15(1) s 33 s 39 s 53 LEGISLATION CITED : Coal Mines Regulation Act 1982 s 93D Coal Mines (General) Regulations 1984 Clause 11(1) Chamberlain v The Queen (No 2) (1983-1984) 153 CLR 521 at 536 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 155 to 157 CASES CITED : Inspector Barnard v Rail Infrastructure Corporation (2001) NSWIRComm 255 at 45 (para [10] Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705) WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 at 77 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 at 258 Workcover Authority of New Sputh Wales (Inspector Martin) v GrainCorp Operations Limited [2002] NSWIRComm 312 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257 HEARING DATES: 09/30/2002; 10/01/2002; 10/02/2002; 10/03/2002; 11/01/2002 DATE OF JUDGMENT: 12/03/2002 PROSECUTOR: Ms A F Backman of counsel SOLICITOR: Mr R Salpeter Crown Solicitor's Office LEGAL REPRESENTATIVES: DEFENDANT: Mr B Hodgkinson SC with Mr M Shume of counsel SOLICITOR: Mr Paul Cutrone Sparke Helmore JUDGMENT: - 56 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 3 December 2002 Matter No. IRC 4867 of 2001 Rodney Morrison v Tahmoor Coal Pty Ltd. Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] NSWIRComm 327 1 At about 9.00 am on 30 July 1999, David John Hill was working for his employer, Tahmoor Coal Pty Ltd. He was an experienced employee in his own work and in the operation of mines - he had been a miner for nearly 20 years. He was also said to be safety conscious and a reliable person. He was certified under the Coal Mines Regulation to be adequately trained so as to be able to work unaccompanied underground in a mine. On this particular morning, while performing a simple, uncomplicated task, which he had apparently carried out many times before, Mr Hill drowned in some 15 metres of water in the area where he was working. 2 By application for order filed on 20 July 2001, the prosecutor sought an order to commence proceedings against the defendant arising from Mr Hill's death, alleging a breach of s 15(1) of the Occupational Health and Safety Act 1983. 3 The charge against the defendant was in the following terms: On or about 30 July 1999, at the Tahmoor Colliery, Remembrance Drive, Tahmoor in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of its employees, in particular, David John Hill, in that it failed to provide a safe system of work contrary to Section 15(1) of the Occupational Health and Safety Act, 1983. The facts and particulars relied upon by the prosecutor were set out in paragraphs 4 - 19 inclusive. Those paragraphs were in the following terms: 4. At about 9am on 30 July 1999, David John Hill ("Hill"), who was employed as a day shift operator at Tahmoor Colliery, was discovered by Trevor Hallett ("Hallett"), a co-worker at the Colliery in the sump at No. 3 shaft. At some stage, either shortly before 9am or shortly after, Hill drowned in the sump. 5. No. 3 shaft at Tahmoor Colliery was sunk in 1990 to a depth of 411 metres with a diameter of 6.7 metres. The sump at the bottom of the shaft (a continuation of that shaft) also has a diameter of 6.7 metres. The sump at No. 3 shaft is accessed via four drives or tunnels. All four drives have a brick dam set back from the sump at an approximate distance of three metres. A guardrail or handrail circumvents the sump at a distance of some 600mm from the sump. The sump is filled with water to a depth of some 15 metres. 6. From about 26 July 1999, the water level in No. 3 shaft had been rising and water was flowing down the roadways making the area wet and slippery. The dammed area near the sump was filled with water to a depth of about 0.5 metres. 7. Some weeks before 30 July 1999, a pump was installed by Hill on the east drive side of the dam wall. The reason for the pump's installation was to increase the capacity of the gravity line at No. 3 shaft because water was running along the roads at Tahmoor Colliery. 8. In the weeks following the installation of the pump, excess water continued to run along the roadways. 9. On 30 July 1999, Hill went with Hallett to No. 3 shaft in order to replace the pump with a new pump; and, also, to replace a foot valve. 10. At about 8.30am, Hill and Hallett entered the east drive (also known as 12 Cut Through) via E Heading. In the East drive they walked through a mesh fence carrying the new pump. Prior to going through the mesh fence Hill had taken off his gumboots and put on waders. 11. Installing the new pump included replacing the existing pump and refitting various hoses. One hose was tied to a pogo stick (a piece of orange PVC pipe) and passed through the handrail before dropping off into the sump. The pogo stick was, in turn, tied to the handrail. In order to refit the hose tied to the pogo stick, Hill had to walk through the dammed area and up to the handrail. 12. Meanwhile, Hill asked Hallett to retrieve the new foot valve which had been left on the other side of the mesh fence. As Hallett left to retrieve the foot valve, he saw Hill kneeling down and leaning over the intermediate rail of the handrail reaching for the hose which dropped into the sump. Upon returning, Hallett saw Hill in the sump. 13. On 30 July 1999, the water was brown and murky in the vicinity of the sump; and, the water level had risen so that the edge of the sump where the deeper water commenced was not visible. 14. The area at No. 3 shaft in the vicinity of the sump was in complete darkness. The only source of light Hill had was his cap lamp. Hallett also had a cap lamp. 15. No. 3 shaft was also known to have iron oxide or iron deposits built up on the sides of the shaft. These iron deposits sometimes fell down from the sides of the shaft. 16. The area at No. 3 shaft, in the vicinity of the sump, was also a relatively inaccessible area in that the nearest mining personnel, on 30 July 1999 at the time of Hill's fatal accident, were some two kilometres away, also underground in a crib room. 17. There was a potential risk to the health, safety and welfare of David John Hill while he was working in the vicinity of the sump at No. 3 shaft on 30 July 1999. 18. The defendant's failure and/or omission was the failure and/or omission to implement or provide an adequate system of work to ensure Hill's health, welfare and safety. 19. As a result of the defendant's failure and/or omission, Hill was placed at risk of injury. 4 In the week before the hearing of this prosecution commenced, solicitors for the defendant wrote to the Crown Solicitor who was acting for the prosecutor, requesting the prosecutor to identify the risk of injury which was alleged in the Application and, in particular, in Clause 19 in relation to which Mr Hill was said to be exposed. That request brought a certain response from the prosecutor's legal representatives which became an issue on the first day of the hearing. It is sufficient to record that, after argument, the prosecutor supplied the following additional particulars: In relation to your request to identify the risk of injury that Mr Hill in particular was exposed to, the risk of injury was the risk of drowning in the sump. This risk arose because part of what Mr Hill intended to do at the No 3 shaft was to check and if necessary, replace the foot valve that was in the water inside the sump. On the basis of that clarification and particularisation the hearing proceeded. THE EVIDENCE 5 As the particulars of the alleged breach indicate, on the day in question Mr Hill was accompanied by Mr Trevor Hallett who was assisting him in changing the pump at the sump in No 3 shaft. Mr Hallett was a coal miner who had worked at the colliery for approximately 20 years. In that time he had worked with Mr Hill. His normal duties were general underground duties which meant that he drove graders and different types of machinery, and he assisted Mr Hill on certain jobs when requested. These general underground duties were performed only by Mr Hill and Mr Hallett at the colliery. That work covered the whole mining area underground and the work could be performed anywhere underground on a particular day. Mr Hallett's work was such that he was not normally allocated work by anyone and would perform his work as it arose but would also provide assistance when requested, particularly to Mr Hill. 6 On 30 July 1999, not long after he commenced work, Mr Hill approached him and asked for assistance with a particular job. The job involved replacing a pump at the No 3 shaft. The two employees obtained the equipment they needed and travelled underground having obtained a new pump and foot valve from the store. To obtain access to the No 3 shaft required them to travel some distance and then proceed through what was described as "trap doors" which regulated air into the shaft, and then to walk some distance to reach the sump where the pump required replacing. Both Mr Hill and Mr Hallett carried the pump and, in addition, one of them carried the foot valve from the transport vehicles into No 3 shaft. 7 In terms of equipment, Mr Hill, apart from the tools on his belt, had a hammer and they were both wearing safety hats with lights. In addition, both men had a "self rescuer" which was used in case of fire or smoke to enable them to breathe. 8 After passing through the three trap doors, the pair had to pass through a mesh fence which was close to the sump. When walking through this mesh fence, Mr Hill told Mr Hallett that he had torn his waders, an event which caused Mr Hill some annoyance. Mr Hill had taken his gumboots off and left them on the ground while he put on his waders. This occurred before they went through the mesh fence and towards the sump. They both picked up the pump and carried it through the mesh fence up to a brick wall in No 3 shaft. Mr Hallett said that there was an opening in the mesh that permitted entry. A small brick retaining wall was approximately 6 metres on the other side of the mesh fence. 9 The men used the hammer to untap the screws on the hose disconnecting them from the old pump and attaching them to the new pump. One of the hoses was a suction line which was connected to a "pogo stick" and lowered into the water. There was a foot valve connected to the end of that hose and the pogo stick came through the railing around the sump. The railing around the sump was described as being a top and middle rail and this rail ran around the entirety of the sump. Mr Hallett thought that the pogo stick had been tied to the bottom rail but he was not entirely sure. After connecting the hoses, the new pump was placed on the brick wall and Mr Hill moved towards the handrail and knelt down, reaching out for the suction line which had the foot valve attached. Mr Hallett described Mr Hill at this point as crouching down and leaning through the bottom railing, towards the suction hose. Mr Hallett could not see how far through the railing Mr Hill was reaching but it was the top part of his body which was through the railing. 10 Mr Hill then asked Mr Hallett to get the new foot valve which was on the other side of the mesh fence. Mr Hallett walked back and returned with the foot valve, a task he estimated took between 30 and 40 seconds. 11 As Mr Hallett walked through the mesh fence and started to straighten up he could see Mr Hill in the sump. He raced over to see if he could help Mr Hill who, he said, was on the edge of the sump in the water and drifting away from him. At this point, the water was too murky for Mr Hallett to see the edge of the sump which was behind the railing. Mr Hallett saw Mr Hill just lying in the water and when he tried to reach Mr Hill he started to float away from Mr Hallett. Mr Hallett then got through the railing himself and was hanging on to the railing and reaching out for Mr Hill, holding on to the top rail. Mr Hallett called out to Mr Hill to reach for his hand but there was no response and Mr Hill did not reach out for Mr Hallett. At this point, Mr Hallett said Mr Hill had his safety hat on and his lamp was also on. Mr Hallett said that although he was reaching out for Mr Hill, Mr Hill just floated further away and it was too far for Mr Hallett to reach out for him. Mr Hallett was left to watch Mr Hill sink below the surface. He then went to find an emergency telephone to ring emergency numbers. 12 Mr Hallet said that he walked to an area known as "Worthington pumps" and used the telephone to raise the alarm and seek assistance. He walked reasonably quickly but it took him probably five minutes to get to the telephone. 13 Mr Hallett had some three months previously helped Mr Hill install the pump that they had just replaced. He believed the pogo stick was there at that time and they connected the hoses to the pump. The pogo stick was tied to the rail and the suction line was dropped over into the sump. On that occasion, the foot valve was already installed and he had not been involved in that task. 14 Mr Hallett said that on the day of the accident he had not gone into the "wet side" of the brick wall because he was not required to. He could not see how deep the water was but it was backing up against the brick wall. 15 At the time, there was no other source of light other than the lamp on his safety hat and that of Mr Hill. Mr Hallett said that he had never received any instructions from anyone at the mine in relation to working in the vicinity of the sump at No 3 shaft or in the vicinity of any sump at the mine. He had not been told anything about the sump at No 3 shaft and he did not know how deep it was. 16 In cross-examination, Mr Hallet confirmed that Mr Hill's usual work involved checking various pumps and pieces of similar equipment around the whole mine and that was done largely by himself unless he needed some assistance. Mr Hallett said that he had been trained, with experience, to work by himself in the mine in a similar way. Mr Hallett confirmed that when he worked in the mine he always had a self-rescuer, a piece of safety equipment, and he was not allowed underground without the self-rescuer. He had been trained in its operation, and to go underground he also had to have his hard hat and his cap lamp. He also had a belt with a space for the cap lamp battery and to attach the self-rescuer, and to carry a small number of tools as required. 17 Mr Hallett confirmed that there were restrictions as to what could be taken into the mine and he had been trained in those matters. A watch could not be taken in if it was operated by battery nor could a lighter or any source of flame be taken into the mine. 18 When he was working with Mr Hill at the No 3 sump, they both had cap lamps and they performed the job of installing the pump without any other source of lighting. 19 The trap doors were part of an air reticulation system in the mine: they created an air lock between the working area of the mine and the ventilation area of the mine. One purpose was to keep fresh air in the working areas of the mine and also to ensure that if there was any dust it could be extracted. 20 He had installed this type of pump before and was familiar with the job. The difference with this pump was that the extraction tube was hung into the sump area but that was not of any particular difference, and Mr Hallett completely understood the work he had to do. 21 Mr Hill did this type of work with pumps all the time. When they worked together Mr Hill would be in charge. Mr Hill was the person with all the knowledge in what had to be done and why. 22 The suction hose had a foot valve attached. It was fed over the edge of the sump and into the water and Mr Hill had put the pogo stick on it. In this way the foot valve and the hose were lowered into the sump. Mr Hallett agreed that he did not need to go into any other area than that between the mesh fence and the handrailing for the purpose of installing the pump. During the installation neither he nor Mr Hill went to the other side of the handrailing towards the sump. Mr Hallett also agreed that the hardest part of the task was carrying the pump: there was no particular difficulty installing the pump on the first occasion. It was a fairly simple installation process and one with which he was familiar. 23 When completing the installation on the first occasion Mr Hallett agreed that he did not have difficulty with the lighting in order to complete the job. The cap lamp cast sufficient light for him to be able to carry out the job properly. 24 Mr Hallett did not go to these areas usually except to assist in changing the pumps. That work was normally done by Mr Hill. Before going into any area of the mine it had to be checked as part of safety requirements. It was the Mine Deputy who was given the responsibility to perform that checking task. Mr Hallett did not know if Mr Hill had organised for the check to be carried out but the Deputy's check note was on the trapdoor - the Deputy who had checked it was a Mr Hamer. That checking was necessary before he could proceed into the area and that was normal operating procedure. 25 There was no problem with the lighting in order to perform the work. He could see the water was over the sump and Mr Hallett could also see the handrail as well as the extraction tubing from the pump. 26 When Mr Hallett came on the second occasion to this area to change the pump, there was nothing different that indicated there would be any trouble or difficulty with the job. 27 Mr Hallett confirmed that between the dam wall and the handrailing there was water. On the other side of the wall the water was not deep - just a bit damp. There was a bit of water on the roadway area but not puddles or pools of water. 28 Mr Hallett said that he was watching Mr Hill work on the pump. He saw Mr Hill crouch down after he had moved towards the handrail but Mr Hallett could not say if his knees were tucked up or if one knee was on the ground. He agreed that Mr Hill had lowered himself down and was near the handrail and was below the top of the handrail. Mr Hill was reaching by putting his arm through the handrail, just stretching up with his arm from a crouched position. He appeared to be trying to grasp on to the suction hose. Mr Hill was reaching through the bottom rail in trying to perform this task. Mr Hallett confirmed that in crouching, Mr Hill's legs were in a position below the bottom rail with the bottom rail effectively coming between the bottom of his chin and his hip line. In reaching out in this way, Mr Hallett said that Mr Hill did not appear to be having any difficulty, although he was not taking much notice at that point. Mr Hill said nothing to him to indicate that there was something unexpected which had happened. He did not say anything except to ask Mr Hallett to get the foot valve. Mr Hallett agreed that crouching, reaching towards the suction hose to pull it in, was not a difficult job. 29 Mr Hallett turned his back on Mr Hill and walked through the mesh fence to pick up the foot valve. There was no particular need to rush but he walked continuously, picked up the valve and returned immediately. He estimated that it took him 30 to 40 seconds all up but he did not time it. On his return, by the time had got to the brick wall, he could see Mr Hill in the sump. He agreed that it was possible that he was absent for only 20 seconds. He stated that there was no reason, in performing any part of this work, for Mr Hill to be on the other side of the handrail. 30 Mr Hallett agreed that he had been through a safety induction course for the purpose of working at the Tahmoor Mine. It was not possible to go underground without completing the induction course. He had been instructed in safe working systems underground and had been instructed about getting out of the mine when there was a difficult or dangerous situation, referred to as 'second means egress'. He had attended team meetings which were held regularly - about once every month or so - which dealt with problems including problems of safety. 31 When Mr Hallett saw Mr Hill in the sump, he was lyying parallel, on top of the water. He did not recollect whether Mr Hill was face up or face down but he did not see any light. Mr Hallett did not see any helmet until Mr Hill went down under the water. Whilst Mr Hallett was moving towards Mr Hill, he was starting to go down feet first in an upright position: Mr Hill was in an upright position in the water by the time Mr Hallett got to the fence. At this point, Mr Hallett could not say how much of Mr Hill was above water and he did not see any light and he could not see any helmet. Mr Hallett said he reached out to Mr Hill who was by this stage in a vertical position, but got no response from him. Mr Hill was facing towards Mr Hallett and he could see Mr Hill's face. Mr Hallett said that Mr Hill kept on moving away further out of reach and he was unable to reach him from where he was standing. Mr Hallett started to take off his boots to go into the sump but then had second thoughts. At that point, Mr Hill went under the water and that is when he noticed his hat floating on the water. The hat went down under the water as Mr Hill sank in the water. 32 Mr Hallett was asked about answers he gave in an interview on 30 July 1999 with Mr Abbott and Mr Smith from the Department of Mineral Resources. He denied telling them that he saw Mr Hill struggling to keep afloat in the water - he had corrected that and told them that Mr Hill was motionless on the water. Mr Hallett said that Mr Hill was not trying to get to him at all and he was not prepared to sign a statement unless it was corrected. 33 Mr Hallett also provided a statement to Mr Johnstone from the Department of Mineral Resources. In that interview, Mr Johnstone raised with him that he told the police that Mr Hill had bobbed up and down - he had gone under the water and had come back up again a couple of times. Mr Hallett agreed that was so and that is what he had told the police. This had occurred two or three times. Mr Hallett said that, when this bobbing up and down had occurred, Mr Hill was not moving away. He did not think he could be mistaken about this occurring. When it occurred, Mr Hill did not bob up and down very quickly and he did not recollect Mr Hill moving during this process. During the time that Mr Hill was out of his reach, Mr Hallett did not see him move at all - no part of his body moved. Mr Hallett said that he could not be mistaken about Mr Hill bobbing up and down in the water and agreed that it had definitely happened. 34 Mr Hallett did not know why Mr Hill was on the other side of the fence and, as far as he knew, there was no reason to get on the other side of the handrail. He agreed that the handrail was there so that people did not go to the other side. His understanding about the purpose of the rail came from working in the mine, the induction training he had received and the result of work he had done with Mr Hill on earlier occasions in the No 3 shaft. As a result of all of those things, he was aware that the rail was there to stop people going to the other side. As far as he was aware, from his experience, on that day there was no reason for anybody to go to the sump side of the handrail. All the work could be simply and easily performed without going over the rail. He had never seen Mr Hill work on the other side of the rail or even move to get on to the other side of the rail. Mr Hall said that he had been given his induction training probably ten years ago but no refresher induction courses since then. Mr Hallett was of the view that it was common sense more than anything else not to go over the handrail at No 3 shaft. There was no particular training in that matter. 35 A post mortem examination was conducted by Dr Langlios. The report found no signs of recent trauma apart from noting that froth had issued from the mouth. In relation to the musculoskeletal system the report stated: Subcutaneous dissection of the face revealed a one centimetre in diameter area of haemorrhage just above and medial to the inner aspect of the right eye. The bones of the face were intact. There was no other evidence of subcutaneous haemorrhage or bruising in the head, neck, back, chest, abdomen, upper limbs or lower limbs. There was no haemorrhage or bruising into the muscles of the chest or abdomen, however, there was evidence of tearing of the muscle due to breaking of rigor of the pectoral muscles and the left biceps. There was no evidence of alcohol or of drugs. After noting the signs that were indicative of drowning, a section of the report headed "Commentary" continued: There was no external evidence of injury on the body. A one centimetre area of haemorrhage was noted in the deep tissues under the skin of the face just above the inner aspect of the right eye. This appeared to be a trivial injury. 36 Mr Hamer was a Coal Mine Deputy, a position he had held for 16 years. He had been working for that period at the Tahmoor Mine. On 30 July 1999, he was on duty and was approached by Mr Hill who asked him to inspect the sump area at No 3 shaft because he was proposing to organise another workman to go with him to that area and change the pump. Mr Hamer arranged to do the inspection and to leave his inspection note at the entrance so that Mr Hill would know that the inspection had been carried out. Mr Hamer had inspected this area many times before. 37 Mr Hamer said that he had inspected this area before for the presence of noxious inflammable gases, to check the state of gas preservation and for general statutory inspection. It was not an area where people usually worked. That was because it was noxious and because it was an area known as general underground and people normally did not carry out work there. 38 Mr Hill had told him that he was going to perform this work with the assistance of Mr Hallett. So far as Mr Hamer was aware, apart from performing inspection work or to do work in relation to the pumps, there was no other reason for a person to be in that area. 39 In cross-examination, Mr Hamer agreed that as a Deputy he was trained to carry out inspections to determine whether other persons could come into a particular area of the mine to carry out work functions or other functions. That is what he did on 30 July 1999. Mr Hamer said he had checked matters such as gas levels and had formed the view that Mr Hill would be able to come safely into that area and carry out the work that he had described was to be performed. 40 Mr Hamer knew the nature of the work Mr Hill usually performed and was to perform on that day. He knew his role was looking after pumps and like matters. 41 Mr Otto Stadelmann was the Deputy at the Long Wall on day shift on 30 July 1999 at the Tahmoor Mine. He had worked at the mine since November 1979. 42 On that day, he had received a telephone call that there had been an accident. Together with other employees, he made his way to No 3 shaft having been informed that Mr Hill had fallen into the shaft. When he received that call he was approximately three kilometres from No 3 shaft. There was transport available to drive him near the No 3 shaft and then he had to proceed on foot. It was Mr Stadelmann's estimate that it took between 20 and 25 minutes from the time he received the emergency call to arrive at the No 3 shaft. 43 Mr Stadelmann estimated that the sump at No 3 shaft was between 15 to 20 metres deep. He became aware of the depth of the sump because he inspected it during construction. He understood the shaft was used for water storage. 44 When he arrived at the No 3 shaft, he noted that the water was very murky. After attempting to find Mr Hill in the sump and rigging up a makeshift hook from material in the vicinity to fish for the body in the sump, nothing was found. 45 After approximately 20 minutes, Mr Stadelmann went into E Heading to make a telephone call but the telephone was not working properly. 46 While they were at the No 3 shaft, Mr Hallett arrived with other employees. Mr Hallett told them that Mr Hill had fallen into the shaft and had drowned. Mr Stadelmann noted that Mr Hallett was really upset and was in such a state that he instructed others to take him to the surface. 47 The site of the accident at No 3 shaft was inspected on 5 August 1999 by Mr Hoerndlein. Mr Hoerndlein's minute, which was in evidence, stated that he was an Inspector of Mechanical Engineering employed by the Department of Mineral Resources and that he was a qualified mechanical engineer holding the Diploma of Mechanical Engineering issued by the Department of Education of Tasmania. He stated that his duties required him to carry out mechanical examination of equipment at coal mines. The minute was signed also by Mr Abbott, a senior Inspector of Coal Mines. 48 The minute noted that the pump operated by compressed air was positioned outside a guardrail. The guardrail was continuous around the top of the shaft sump and set back about 600mm from the edge of the concrete shaft collar. Mr Hoerndlein found that the suction hose was easily pulled out of the sump and that there was no reason to proceed past the guardrail for any repairs to the pump or suction hose. The guardrail was measured and found to comply with the requirements of Australian Standard AS 1657 - 1992 referrable to fixed platforms, walkways, stairways and ladders. 49 The minute concluded by expressing the opinion that all the required guarding was in place and that the examination did not reveal any defect which may have contributed to the accident. 50 Murray Johnstone was a Detective Sergeant of Police who, from June 1999 until December 2000, was employed by the Department of Mineral Resources as an Investigator. He had visited the site of the accident and had prepared a report in compliance with s 93D of the Coal Mines Regulation Act 1982 for the Director-General of the Department of Mineral Resources. In the course of his investigation, he had conducted a Record of Interview with Mr Peter Wynne at the Tahmoor Colliery. 51 Detective Johnstone was able to state that Mr Abbott, who had signed the statement together with Mr Hoerndlein, was the direct supervisor of Mr Hill at the time and had also attended the scene on the day of the accident. Detective Johnstone understood from his investigation that Mr Hill worked from time to time by himself whilst underground and was properly trained and authorised to do so. 52 On his inspection of the site, Detective Johnstone used a hard hat and a miner's lamp, and others who were present were similarly equipped. He confirmed that was a system which operated in many mines in his experience as an Investigator and he did not see anything unusual in using cap lamps in this area. That was the method of lighting he expected from his experience. Detective Johnstone noted that the mesh fence barrier was folded back to allow access to No 3 sump. He assumed that it could be folded back across the opening to block it. 53 During his investigation, it was decided to time a person undertaking the task of walking from the concrete weir back through the mesh fence and returning. He, in fact, timed Inspector Smith performing this task, observing him to walk at a slow pace and not rushing. He timed the exercise to take 20 seconds. This was, approximately, the maximum time that it would take to perform this task. 54 Detective Johnstone said that, together with two other police officers, investigators from the Department of Mineral Resources and others, he attempted to conduct a re-enactment of the drowning of Mr Hill in a swimming pool. In order to conduct the re-enactment, the size and weight of Mr Hill was obtained together with the same type of equipment and clothing that Mr Hill was wearing at the time of his death. A tear was put in the waders in the same position and of the same size as had been found in Mr Hill's waders. 55 The re-enactment was video taped. The first test was to see whether a person could float having fallen into the water with that equipment and clothing on. It was shown that, for in excess of 20 seconds, a person could remain above the water by swimming - the person in the re-enactment was able to swim while wearing the equipment and clothing similar to that of Mr Hill. A person was shown to be able to swim to the side of the swimming pool after a period of 20 seconds. When the person did not swim he sank immediately. Detective Johnstone said that a person had to use some energy to stay afloat. Detective Johnstone drew the conclusion that Mr Hill could not have spent any time on the surface of the water in the sump unless he was swimming or moving in some fashion. That conclusion was inconsistent with Mr Hallett's description of what he saw at the time that Mr Hill drowned. 56 Detective Johnstone returned to the mine site some time later with others to test the changing of the pump and whether the hose could be removed from the sump. On this occasion, the area was lit by the cap lamps and he had no problem observing the person attending to the hoses using that cap lamp. Detective Johnstone observed a person stand at the guardrail, reach over and pick up the hose without any difficulty. While doing this, he observed the person and that the centre of his body weight remained on the correct side of the guardrail. Detective Johnstone's view was that there was no chance of him falling over the guardrail while performing that task. Detective Johnstone also observed the person reaching underneath the bottom rail to pick up the hose. The pump was also removed by reaching through the middle of the guardrail. On each occasion, there was no difficulty removing the pipe from the sump and at no time was the body weight beyond the safe side of the guardrail. There did not appear to be any chance of the person falling and he had formed the view that there was no chance that a person could fall through the guardrail while involved in this task. 57 Detective Johnstone looked closely at the mesh fence and could find nothing sharp that may have torn Mr Hill's waders. In his report to the Director-General, Detective Johnstone expressed the view that there was no reason for Mr Hill to breach the guardrail and that the job he was performing could safely be completed from outside the guardrail. There was nothing in the duties that required him to move from the safe side to the other side of the guardrail. He was of the view that the information he obtained did not support the version of events provided to him by Mr Hallett. 58 During the course of these investigations, he had been told that Mr Hill was a strong swimmer. He did not believe that a person of the size and dressed as Mr Hill was could bob up and down in the water without swimming or exerting some effort. When Mr Hill's body was recovered from the bottom of the sump, all the tools he was using were accounted for: because they were all accounted for, the possibility that Mr Hill was looking for one of the tools was excluded as a possibility. 59 Detective Johnstone confirmed that, when standing at the guardrail, a person was under a roof and was not exposed to the area of the shaft going upwards. From the totality of his investigation, the Detective formed the view that it was not feasible that Mr Hill had been knocked through the guardrail into the water. 60 During his investigation, he had been told that Mr Hill was responsible for servicing and maintaining the various pumps in the mine for a number of years and he was considered to be a very safe worker. He was told that Mr Hill was careful and responsible in the way he discharged his duties and that, as a consequence of his training, if anybody was going to be trained in the job, it was Mr Hill who would provide that training. Detective Johnstone summarised his view in relation to safety legislation in reporting to the Director-General of the Department that the evidence was insufficient to identify a non-compliance with the Occupational Health and Safety Act and the Coal Mines Regulation Act. 61 Detective Johnstone said that this was the first investigation he had conducted in his capacity as an investigator with the Department of Mineral Resources. In relation to the possibility that Mr Hill had been knocked into the water by falling material, Detective Johnstone noted that on examination of the railing it did not appear to have any sediment or dry sediment on it. There was no indication from Mr Hallett that Mr Hill had any amount of debris on him. Even if something had hit him on the head, Detective Johnstone formed the view that there was no guarantee it would have knocked him through the guardrail into the sump. He had considered this possibility because a mine worker had raised with him the fact that somebody had been hit on the head by iron oxide falling from a shaft. 62 Senior Sergeant Strik had attended the mine on 30 July 1999. At that time, he was in charge of the Crime Scene Unit at Campbelltown Police and it was part of his duties to attend scenes of alleged crimes and incidents for the purpose of making examinations, sketches and taking photographs for later presentation at court. He had prepared a statement from his notes taken at the time of his attendance at the mine and that statement was tendered in evidence. In that statement, amongst other things, he noted that around the top of the sump was a safety handrail. He noted that the work area was probably as safe as possible given the work environment. The water pump was situated away from the edge of the sump. In relation to Mr Hill, Senior Sergeant Strik noted that there were no immediate signs of injury on the face and hands of the deceased. There was a quantity of white froth on the nose and mouth of the deceased and some very slight bloodstaining. There was nothing in his hands. In relation to general comments, the Senior Sergeant stated: The deceased normally worked alone in this area and on this type of work. It was his responsibility to ensure the water level in the sump was kept down to a manageable level. On this day a second person was working with the deceased, because the air driven water pump had to be replaced. There was no safety line for staff working around the sump, although the handrail was designed to stop people going too near the edge of the sump. 63 The Senior Sergeant said that as a Crime Scene Investigator he had investigated a lot of industrial accidents. He expressed his opinion about the safety of the working area, accepting that it was a coal mine: the circumstances were as good as could be expected at the time. 64 During his investigation and while at the site in the company of others, he observed the pogo stick attached to the rubber pipe and saw the rubber pipe lifted out of the sump. It appeared to him to be a simple and easy operation. 65 Senior Sergeant Strik said that he did not know whether the various versions of events Mr Hallett had provided were consistent with the observations and conclusions he had made. He had asked for assistance in his investigation because he was not a skilled interrogator but was primarily an investigator of physical evidence. During his time at the scene he had a cap lamp and a helmet and he had no difficulty getting around the site using that equipment. 66 Mr Hamson assisted in the investigation of this accident in his capacity as a Senior Mine Safety Officer with the Department of Mineral Resources. He attended the mine on the day of the accident. In examining the scene of the accident, he noted that at the bottom of the air shaft was a mesh fence set up with a doorway and behind it was the sump with a handrail around it. He said that there was a brick weir to contain the water that was above ground level. On this day, it was above ground level and the water was murky. He observed another officer test the water finding it to be 22 degrees Celsius. Mr Hamson leaned over the handrail and pulled in the suction hose and found a foot valve at the end of it. He could not see the lip of the sump because past the weir the water was over the edge of the sump running up to the weir - that was just above gumboot depth, approximately 400 mm deeper than the ground level. 67 In cross-examination, Mr Hamson agreed that, although the mesh fence was approximately head high, a person could climb over it if they wished. He also accepted that to do work in the area of the sump a person had to pass through the mesh fence. Mr Hamson also accepted that the mesh fence with the wire gate closed was a barrier. 68 When Mr Hamson lifted the suction hose it was a fairly simple task and was not overly heavy. He was able to perform that task by standing adjacent to the guardrail. Mr Hamson said that any time he lifted the suction pipe, including when he was observed by others, he was able to do so without difficulty. He was able to perform that lift over the guardrail, between the guardrail and the bottom of the guardrail. He was able to lift the suction tube by moving the pogo stick and again was able to perform that task from outside the rail around the sump. It was a quite easy task to perform. 69 In July and August 1999, Mr Douglas Smith was a District Inspector of Coal Mines employed by the Department of Mineral Resources. He had been employed in the mining industry in various capacities for about 42 years. His role as District Inspector involved him in investigating incidents and/or problems that arose at various mines. He had attended the Tahmoor mine in relation to the death of Mr Hill on 30 July 1999. His main purpose under the Act was to look at the accident, find the cause and to make sure it would not happen again. The actual identification of breaches followed that main purpose. In ascertaining the cause of the accident, it was part of his task to assess whether there had been compliance with standards and regulations as required by the Department. Mr Smith accepted, on inspection, that the rail around the sump complied with Australian Standard AS 1657 of 1992. The Department did not require, nor did legislation require things like the sump to be fenced but a prudent man would make sure that it would be fenced to a certain standard and the defendant had gone to the recognised Australian standard. He observed it to be a solid fence, a type of fence seen everywhere and used to prevent a person from inadvertently going into the area beyond the fence where it might be dangerous. 70 He was satisfied that Mr Hill was experienced in the task and had a relevant understanding of the job to be done. He had been involved in that work for a number of years and the work was part of his normal function. 71 At the scene of the accident, Mr Smith had a safety helmet with a cap lamp - the light provided by the lamp was sufficient to carry out his investigation and he had no difficulty with light. He agreed that the cap lamp provided sufficient light to carry out the work of changing the pump. He also agreed that part of the job being performed by Mr Hill was actually carrying the pump. 72 Having identified the work, Mr Smith could find no reason whatever for Mr Hill to go over the rail. He agreed that all the work could be carried out quite easily from the safe side of the rail. 73 He was present when Mr Hallett made a statement and agreed that Mr Hallett had changed his mind "on a couple of occasions" about the content of that statement. There was more than one occasion where Mr Hallett wanted alterations made to his statement - the statement finally prepared contained what Mr Hallett had come to agree to. The first thing Mr Hallett said was that Mr Hill appeared to be floating in the water. During the course of that interview, Mr Hallett indicated that he did not like that description and said he was actually struggling in the water. When the statement was typed with that alteration in it, Mr Hallett altered it again to go back to Mr Hill floating in the water. 74 In Mr Smith's experience in the mining industry, it was quite normal for people involved in the maintenance of pumps to work on their own, to organise their work schedule and request assistance when required. 75 The prosecution also called evidence from a Mr Noy, who was a Fire Hydrant Inspector, a medical officer and a Mine Site Roadway Dust Examiner and a Mr Armstrong, who was an electrician at the colliery. The evidence of these two witnesses did not add materially to the prosecution case. 76 A Record of Interview between Mr Johnstone and the Manager of the Tahmoor Colliery, a Mr Peter Wynne, was tendered. Mr Wynne said that Mr Hill had been working at the mine for the 13 years that Mr Wynne had been employed there: he had been employed as an operator on day shift looking after the pumps and pumping. He said that the purpose of the No 3 shaft was to provide ventilation for the mine and that it was 15 or 16 metres deep when it was completed in 1990. It was constructed to that depth because it gave the option to add further equipment, known as a "man winder" in the future. The risk of having the sump was assessed and it was decided to have an appropriate fence erected. Mr Wynne said that at the time of the accident, the safety precautions in this area was that of an appropriate safety fence separating the worksite from the hazard. The purpose of the guardrail was to prevent access to the sump. The fence itself was all that was required to communicate that there was something hazardous on the other side and that was the way the hazard was communicated to those in the mine. 77 Mr Wynne said there were three shafts but they were all slightly different and safety precautions were, accordingly, slightly different. The No 1 shaft had steel plates over the hole; the No 2 shaft had a winder in it and had a steel deck with some access holes in the deck which had fences of a similar design to the fence in the No 3 shaft. It was not appropriate to have steel plates in the No 3 shaft because of the corrosive environment there. If there was a steel deck, people might think it was all right to walk on and the plates could be dangerously thin. There were no signs indicating the danger of the sump because there was a fence there. It was standard practice to have the fence as a warning. 78 Mr Wynne said the work of changing the pump did not involve going on to the sump side of the guardrail. In relation to Mr Hill's training, Mr Wynne said he had at least eight years' practical experience on the job but he did not know what training he received concerning working at the No 3 shaft or working on the sump there. He presumed that Mr Hill would have done the defendant's "more safe course" in general safety principles: this was a course to raise awareness of dangers that might be around employees and that they should not take for granted. Training was reinforced every month, with each team holding safety meetings where incidents were raised to enforce the need for awareness. Mr Wynne was unaware whether these meetings would raise safety issues around sumps as he was unaware of any recent incident involving sumps. There was no standard working procedure or similar document in existence for work at the No 3 shaft or for work in the vicinity of the sump. There was no reason for anyone to be on the sump side of the guardrail at No 3 shaft - the job could be done completely from the other side of the rail. This was so whether the work was on the pump or otherwise. Mr Wynne was unaware of anybody ever working on the other side of the guardrail at the sump at No 3 shaft. 79 The defendant had conducted an inquiry into the accident. As a result of that investigation, the defendant was unable to determine why Mr Hill fell into the sump. Since the accident, no steps had been taken to make the sumps safer. The guardrail around the No 3 shaft sump was chosen because it was the Australian Standard. The defendant used that type of fencing to separate people from a dangerous void in compliance with the Australian Standard. Similar fences had been utilised at all high places such as at the top of bins and the top of fan structures. 80 No directions had been issued to employees at the mine not to climb over guardrails. Mr Wynne confirmed that Mr Hill worked virtually autonomously and would only discuss his work with the supervisor if he needed resources to which he did not normally have access. For the work that was to be done on that day, the Deputy had gone to the shaft and inspected it and would have communicated to Mr Hill that it was safe to work in that area. 81 Mr Hill was not closely supervised in his work: he was highly capable and the defendant focussed its supervision on people who needed supervision. Mr Hill was regarded as one of the defendant's most capable employees. Mr Wynne could not recall Mr Hill ever having an accident. He worked very safely, he was very careful and was not a risk taker. 82 The corrosive atmosphere at the bottom of the shafts were similar but at No 3 shaft it was thought better to use a galvanised rail. 83 Mr Wynne said that the fence was put around the sump for a reason and that a person could not accidentally fall through that fence. When such a fence is constructed people knew it was there for a reason and the defendant did not erect fences for no reason. He regarded that fence as a guardrail rather than an impenetrable barrier. 84 A lengthy statement of Detective Senior Constable Thomson was tendered. The Detective Senior Constable became involved in the investigation of the death of Mr Hill as a result of a conversation with Senior Sergeant Strik: a consideration of the events led him to form the view that the matter warranted further investigation due to there being no apparent explanation as to why Mr Hill had died. Detective Thomson had attended the scene and had observed the hose being pulled out of the sump from behind the handrail with the foot valve attached. He observed this task to be carried out with relative ease and without having to enter onto the lip between the sump and the safety railing. There was no lighting in the area but he found the light from the miner's lamp fitted to the helmet cast sufficient light to adequately see the work area. He formed the view that Mr Hill and Mr Hallett had sufficient light to perform the work they were to do in this area. He also witnessed Mr Johnstone and Mr Smith conduct a number of time trials to assess how long it took to walk from the weir wall through the mesh fence and to return. He noted that the completion of this task occupied some 20 seconds walking at a slow pace. 85 Detective Thomson's observations of the scene were "most inconclusive as to how Mr Hill could have drowned". He could find no reason as to how he could accidentally fall into the sump. He regarded the duties being performed at the time provided no reason for Mr Hill to have gone through the fence and he could see nothing that could have snagged the pump hose while he pulled it from the sump. Although the working environment in the No 3 shaft and sump area was dark, windy and damp it appeared to be safe. The concrete surface was not slippery even though it was covered in silt. He observed three safety barriers in total before entry could be gained to the sump itself, being the initial mesh fence, the weir wall which had to be stepped over and the safety handrailing around the sump itself. 86 Detective Thomson spoke to Mrs Hill who had been married to Mr Hill for 29 years. She described her husband as being a fit man in good general health who was a very occasional drinker. He was a community minded person who was a member of the Rural Fire Brigade for 25 years. There were no marital or financial problems. Detective Thomson also spoke to Mr Hill's daughter who lived near her parents. She confirmed that the marriage was happy and there were no financial problems. Ms Hill said her father was a fit and healthy man who was physically active. He was a strong swimmer and as a child had won a number of trophies for swimming. 87 Mr Hill had a long history of insomnia which had worsened lately because of Mr Hill's concern at the uncertainty in the coal industry. He was said to be fit with a healthy general appearance. He was known to his doctor as an emotionally stable patient and person. 88 Mr Hallett was also interviewed by Detective Thomson. He described the work that had been performed that day and how it was arranged with Mr Hill. Mr Hallett told him how he saw Mr Hill lying parallel to the edge of the sump in the water and that, when Mr Hallett ran to the edge of the sump, Mr Hill's legs had apparently sunk into the water and he went from being parallel to vertical with his head above the surface. While Mr Hallett was trying to reach Mr Hill, he called out to him but there was no answer. Mr Hill's eyes were open and so was his mouth. He said Mr Hill appeared motionless in the water. Mr Hill had floated away while Mr Hallett was hanging on to the edge of the rail trying to reach him and he saw him go under the water and re-surface with his head above the water and his face "expressionless". Mr Hill had bobbed up and down like this several times before he disappeared completely. Mr Hallett said that his relationship with Mr Hill was one of being a workmate but they did not socialise together. There were no problems between them. Mr Hallett said he could not see any reason why Mr Hill ended up in the water. 89 Detective Thomson decided to perform a reconstruction of the incident and contacted Dr Langlios to obtain details of the physical size and weight, both wet and dry, of Mr Hill as well as the weight of his equipment. He obtained equipment identical to that used by Mr Hill from Tahmoor colliery and participated in the re-enactment. In his statement, he recalls that Constable Schofield dressed in the miner's working gear, stepped into the swimming pool and was able to stay afloat provided he continued to swim. Swimming appeared to be hard work and Constable Schofield continued to swim for approximately 30 seconds. When the test re-enactment stopped and he stopped swimming ,he immediately sank to the bottom of the pool - he had to swim to keep afloat. The waders filled with water making Constable Schofield's legs very heavy. 90 A video of the re-enactment in the swimming pool was shown to Mr Hallett. He was asked by Detective Thomson that, after viewing the re-enactment, if he would agree that it would appear to be impossible to stay afloat without considerable effort. Mr Hallett replied that he "saw what he saw" and he could not explain it. 91 A Mr Mitcherson came to the Camden Police Station and spoke to Detective Thomson about the death of Mr Hill. Mr Mitcherson said that he had been in a de facto relationship with Mr Hill's daughter for the past four years but they were now separated. Mr Mitcherson had told him that, about a month before his death, Mr Hill had become aware of his wife having an affair with another local resident. Mr Hill was said to have found the couple embracing and had confronted them. Mr Hill was said to have also consulted his local doctor and told him that was the reason why he could not sleep. Mr Mitcherson told Detective Thomson that Mr Hill had told him of the affair and that he was completely devastated by it and felt ashamed due to his standing in a close knit community. Mr Mitcherson was approached again by Detective Thomson but declined to make a statement. He said that he was being threatened and abused. He asserted that everything he said was true but he was not prepared to make a statement and that he was selling up and moving on and intended to travel around the country. 92 Detective Thomson spoke to the people who had been named to him by Mr Mitcherson. All of them denied that there was an affair between Mr Hill's wife and another person, or denied knowledge of such an event. In those interviews, various motives were put forward as to why Mr Mitcherson was not telling the truth or had made up the story. 93 Detective Thomson's statement speaks about Dr Langlios' finding that Mr Hill had struggled while drowning, meaning that he was conscious at the time. There is nothing in the doctor's report that suggests that was so. No party suggested that was so. At the conclusion of the statement Detective Thomson sets out his investigator's opinion. In that part of the document, he states that he was unable to say how or why the deceased ended up in the sump in No 3 shaft - he could not find any reason why Mr Hill, who was said to be a fit man and a capable swimmer, was not able to swim to the edge of the sump and save himself from drowning. 94 A statement was also tendered from Senior Constable Evelyn Messer, who had attended the Tahmoor mine on 30 July 1999. Having viewed the nature of the work at the sump in No 3 shaft, the Senior Constable stated that the activity gave no cause for Mr Hill to intentionally climb over the safety handrail. There were no other moving objects which could cause him to lose balance. The Senior Constable considered the construction of the handrail to be substantial and solid. It was considered to be adequate to prevent accidental access to the sump area. 95 For the defendant, evidence was called from Mr Max Hely who described himself as a Safety and Ergonomics Consultant. His curriculum vitae stated that he had 25 years of professional experience in health, safety, security and human performance environment. He was a certified professional ergonomist having an Applied Science degree, a Science (Hons) Degree and a partly completed doctorate. Mr Hely's opinion was specifically sought in relation to the suitability of the guardrail as a deterrent to prevent a person gaining access to the other side of the sump, having been provided with information contained in a two page report by Mr Hoerndlein and some coloured photographs. Mr Hely's report stated that the particular design, dimensional and construction characteristics of guide rails were intended to minimise the probability that a person would progress beyond a safe point should the person for any reason (eg fatigue, distraction, inattention etc) inadvertently approach an edge. He said it was important to note that the guardrail does not, and cannot, prevent intentional gaining of access by a worker to any point beyond it. From a consideration of the photographs, he was of the view that any person of normal physical competence could climb over and through such a railing as was in place at the No 3 shaft. Having been told of the nature of the work, Mr Hely gave the opinion that he could see no aspect of the system of work which would require the worker to proceed beyond the guardrail. 96 In addition, Mr Hely provided what he described as a crude computer diagram. He was given weight and height statistics in relation to Mr Hill and was asked to give an opinion as to his centre of gravity at certain areas and in certain positions on or around the guardrail. Mr Hely expressed the view that a person crouching near the rail, unless the person's upper trunk was leaning through it or well over it, the centre of gravity would be on the safe side of the fence. That meant that unless the person then jumps or is pushed, leans or does some action or movement to take their upper trunk through the fence, then the centre of gravity and therefore their body would remain on the safe side. This view may alter depending upon how far a person was leaning through the fence either crouching or otherwise. If they extended their trunk almost fully through until their hip was virtually level with the mid rail and the trunk and arms well beyond it, then there was a potential to go through the fence. If a person was unconscious, the only force upon them would be gravity. So, again, if their centre of gravity was still behind the fence, their body would rotate towards the safe side. 97 The defendant also called a medical practitioner, Dr Fenner, to give evidence in relation to his experience in relation to drowning and its causes. While Dr Fenner had general practice experience, he also had experience in lifesaving. Dr Fenner had been nominated as Medical Adviser to three Queensland mines including an underground mine. 98 Dr Fenner stated that, if a person is conscious and drowning, they characteristically are vertical in the water, with their feet pointing downwards, their arms out to their sides and they flap, trying to keep on the surface. Their head is tilted as far back as possible so they can breathe quickly. The weight of their legs pulls them underwater and because they have a lung full of air, they tend to pop up at the surface. They then need to breathe out to replace the used air and breathe back in again as quickly as possible. There is a rapid breathing in and out, so they do not have time to call for help and they do not have enough time to get air in before they are back under the water. This usually happens for about 20 to 60 seconds before they finally go under the water. 99 Dr Fenner said an unconscious person would not be breathing and their body weight will be such that they go straight under the water. Dr Fenner's attention was drawn to the evidence of Mr Hallett given in these proceedings. Mr Hallett had described Mr Hill as floating away on the surface of the water in the sump and then going into an upright position looking towards him and then going down underneath the water and then coming up two or perhaps three times without any physical movement. Dr Fenner thought that this description of what happened to Mr Hill was not possible because the weight of the body would take him down, let alone the weight of the gear he was wearing. He though it impossible that Mr Hill could bob up again without movement. The body would go straight down - that is what normally happens. Dr Fenner was able to give this evidence because of the work he had done and the work he had published on drowning. He said it was fairly standard in medical literature that there were two types of drowning: there was the person who is active and they are conscious and trying to stop themselves from drowning, in which case they are struggling for their life; the other is if they are unconscious and slipping under the water and they are not breathing, the body is heavier so they tend to go under. THE SUBMISSIONS 100 Counsel for the prosecutor stated that the defendant had been charged with an offence under s 15(1) of the Act in that it failed to provide a safe system of work. The particulars of the charge had been provided in the Application for Order Prosecution at paragraphs 4, 17, 18 and 19 of the Application. The prosecution accepted that the risk of injury was the risk of drowning in the sump. 101 There appeared to be no contest that the defendant at the relevant time was an employer, employing not only Mr Hill but a number of others including Mr Hallett, Mr Hamer, Mr Stadelmann and others at the Tahmoor Coal Mine. 102 In relation to the failure to ensure the safety of Mr Hill, the prosecutor alleged that the defendant had no procedures, either written or oral, in place on 30 July 1999 for work of any kind conducted at No 3 shaft or in the vicinity of sumps at the mine. Mr Hill worked at the Tahmoor mine alone and unsupervised. Mr Hill had signed an authority to work "unaccompanied UG", that is, to work underground in accordance with Clause 11(1) of the Coal Mines (General) Regulation 1984. 103 It was submitted that on the evidence no procedure was ever contemplated in relation to Mr Hill's work on 30 July 1999. As stated by Mr Wynne, the Mine Manager, the defendant had considered that Mr Hill was highly capable, reliable, safety conscious and had always worked at the mine in an autonomous capacity. Mr Hill's main task appeared to be maintaining the pumps and the work associated with pumping. 104 In relation to the sump, there were no signs indicating the dangers associated with the sump. The presence of the guardrail was the only indication of danger. No directions were ever issued to employees not to climb over guardrails. There were no standard working procedures in existence or any written documentation relating to work and associated safety measures at No 3 shaft. 105 The sump at No 3 shaft was between 15 to 16 metres deep. It appeared from the evidence of Mr Wynne that no one at the mine was made aware of the depth of the sump at the shaft. There were three shafts at the defendant's mine. Shafts 1 and 2 had steel plates over the "holes" but No 3 shaft did not have steel plates covering the sump because of the corrosive environment in No 3 shaft which would cause them to rust. 106 The prosecutor then turned to how the defendant's failure exposed Mr Hill to a potential risk of injury. It is submitted that on 30 July 1999 the sump and its immediate environs constituted an inherently dangerous working environment because of the combination of the following factors: (i) the area was in complete darkness with the only means of visibility, or source of light being two cap lamps, one worn by Mr Hill and the other worn by Mr Hallett; (ii) without the lighting from a cap lamp, the coal mine was so black that it was completely devoid of light; (iii) on 30 July the water level at No 3 shaft (which had been rising for some time) had risen to a level where the lip of the sump was not visible. The water level had risen to the top of the brick wall or weir set back from the sump and was flowing over it. The brick wall was about 35 centimetres high; (iv) the water was brown and extremely murky so that the edge of the lip of the sump was not visible. According to Mr Stadelman, when he entered No 3 shaft following information he had received regarding an accident there, he took his cap lamp and dangled it in the water in the sump to see if he could locate Mr Hill. He lowered his cap lamp may be two feet but he could not see a light; (v) there was a guardrail some 600mm distance from the sump and circumventing the sump. It consisted of a top rail and an intermediate rail. It did not however prevent persons gaining access to the sump and to the area on the sump side of the guardrail. Mr Hallett for example went either over or through the guardrail with apparent ease when he attempted to assist Mr Hill; (vi) the area at No 3 shaft was remote and inaccessible. (a) No 3 shaft was originally built to provide ventilation for the shaft. The area was a noxious area known as general underground area. Work was not normally carried out there as it was not a production district. Mr Hamer was not aware of any other kind of work performed there other than inspections and changing pumps; (b) the route to No 3 shaft taken by Mr Hill and Mr Hallett on 30 July involved them taking transportations from pit bottom and travelling to three trap doors. From there they travelled on foot carrying an Air 2000 pump and a foot valve through a mesh fence and up to the shaft area. Following Mr Hill's accident, Mr Hallett went to an area designated No 3 Worthington Pumps in order to use the telephone. It took him about five minutes to get there walking reasonably quickly. Mr Hallett spoke to another person at the pit top and then walked to a transport road to await transport. The road was some 400 to 500 metres from the Worthington Pumps area. When Mr Stadelman was informed that there had been an accident at No 3 shaft he was some three kilometres away. He travelled there in transport up to the triple ventilation door and continued from there on foot. When they arrived at No 3 shaft there was no one there and they searched for Mr Hill in the sump without success. Mr Stadelman estimated that the journey to No 3 shaft took about 20 to 25 minutes. They spent a further 20 minutes at No 3 shaft and then went into E Heading in order to attempt to make telephone calls. They were unable to do so because the telephone was not working properly. 107 The evidence showed that the foot valve was on the end of the suction hose inside the sump. Retrieving the foot valve at the end of the suction hose necessitated Mr Hill having access to the sump. The guardrail did nothing to prevent this. Mr Hill was the person at the mine who decided whether work concerning the pump and associated equipment at No 3 shaft needed to be carried out and, if so, what work that entailed. He usually carried out his work alone and without any instructions or supervision. This was because he was considered by the defendant, so it was submitted, to be adequately trained, capable, reliable and safety conscious. 108 Mr Hill was the person who initially installed the system of pumping out excess water at No 3 shaft. He was arguably the most qualified person at the mine, and probably the only person to best know how to work with the pump and associated equipment at No 3 shaft. If that work involved Mr Hill physically being on the sump side of the guardrail then there was no impediment (that is, physically or in the form of some work direction) to prevent Mr Hill being there. Further, he was the most qualified person to assess whether it was necessary for him to work on the sump side of the guardrail. It could be expected that Mr Hill, who was regarded as reliable and safety conscious, would not, in performing these tasks, take what he considered to be unnecessary risks. 109 The prosecutor accepted that there was no evidence of what Mr Hill was doing between the period Mr Hallett went to get the foot valve and when Mr Hallett returned to the area some 30 to 40 seconds later and saw Mr Hill in the sump. At the time of the accident, Mr Hill was wearing plastic waders with a tear in the leg and wearing a belt and equipment which weighed about 10 kgs. Given the condition of the sump on the day, with its rising water level and murky colour such that the lip of the sump was not visible, and light which did not reach much more than two feet into the sump, it may be that a person falling into the sump could be disoriented and would not be able to find his way to the surface in the absence of any reference point. It was in such circumstances that Mr Hill was at risk of drowning. The gravity of the risk was exacerbated by the weight of Mr Hill's equipment. The police reconstruction of the accident showed that an officer of similar height and weight to Mr Hill and carrying similar equipment managed to stay afloat for some 30 seconds before experiencing difficulties. 110 The prosecutor then addressed the applicable legal principles. It was submitted that the defendant had devised no procedures or system of working at No 3 shaft because it considered Mr Hill reliable, safety conscious and capable of working unsupervised. It was submitted to follow that the task of assessing risks associated with Mr Hill's work was allocated or delegated by the defendant to Mr Hill. The duty to assess risks inherent in a job is the duty of management not the employee (WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 at 258; Inspector Barnard v Rail Infrastructure Corporation (2001) NSWIRComm 255 at 45 (paragraph [10]). Where an employee, such as Mr Hill, works effectively without supervision and has to rely on his own resources, the need to ensure he has proper instructions, training etc, is all the greater (Kellogg at 257). 111 In proving a causal connection between the failure as alleged and a resultant potential risk, it is not necessary to establish the circumstances of the accident. In the circumstances here, there is no evidence as to how Mr Hill came to be in the sump and drowned. This does not preclude the prosecution successfully establishing the elements of s 15(1) of the Occupational Health and Safety Act to the requisite standard (Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 155 to 157). The accident represents relevant evidence of the existence of a risk. However, it is not the accident itself which constitutes the offence but rather the failure of the employer to ensure its employees are not exposed to risks (Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452). 112 The prosecutor submitted that it was entirely speculative as to whether Mr Hill deliberately went over or through the guardrail toward the sump. Even if he did, there may well have been some good reason why he did so. Mr Hill was known at the mine for being safety conscious and the inference is therefore open that he would not take unnecessary risks. Even if Mr Hill did take an unnecessary risk, the Act was designed to protect not just the careful worker, but also the inadvertent or reckless worker (WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257); Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 was cited for the proposition that regard must be had not only to the ideal worker, but to the worker who is careless, inattentive or inadvertent (Inspector Barnard v Rail Infrastructure Corporation, paragraph [61]). 113 In relation to the expert evidence, it was submitted that the evidence of Mr Hely would not assist the Court. There was simply no evidence as to where Mr Hill was positioned at the precise moment before he fell into the sump. 114 In relation to Dr Fenner's evidence, which called into question Mr Hallett's account of Mr Hill bobbing up and down in the water if he was not conscious and not swimming, it was submitted that Dr Fenner's evidence could not conclusively suggest that the behaviour of persons in the course of drowning always occurred in exactly the same way described. His evidence dealt with behaviour which was characteristic and normal. 115 It was said that, if Dr Fenner's evidence was tendered to cast doubt on Mr Hallett's account of what he observed, it was difficult to see what relevance it would have to any issue which had to be decided by the Court. This aspect of Mr Hallett's evidence did not go to the question of causation or to any other element of s 15 of the Act which the prosecution was required to prove. Rather, it impermissably focussed upon the accident (see Haynes v C & I D Manufacturing at 157). 116 Detective Thomson's statement was tendered by the prosecutor at the defendant's request and on the basis that, according to the defendant, it contained some relevant material upon which the defendant intended to rely. It was this statement which dealt with Mr Mitcherson's suggestion that, because of personal aspects of his life Mr Hill had committed suicide. The prosecutor pointed out that all the relevant persons were spoken to but, ultimately, Detective Thomson was unable to find the basis for the theory that Mr Hill had committed suicide. Further, Mr Mitcherson had declined to make a statement, as had at least one other person whom Mr Mitcherson relied upon to corroborate his account. 117 In any event, the prosecutor submitted that, if Mr Hill had intended to commit suicide on 30 July 1999, he would not have asked Mr Hallett to accompany him. Mr Hill usually worked alone and therefore would not have attracted any attention if he had gone alone to No 3 shaft on that day. 118 In relation to defences under s 53 of the Act, it was submitted that the defendant had not adduced any evidence which would go to discharging its onus to the requisite standards. The onus on the defendant of establishing a defence under s 53 is a civil onus but is nevertheless substantial (Inspector Barnard v Rail Infrastructure Corporation at paragraph [129]). 119 In relation to s 53(a) of the Act, the defendant had not adduced any evidence to show that steps required to avoid or overcome the risk to safety in the workplace outweighed those risks. It was also submitted that the defendant had not adduced any evidence to prove that the risk of drowning to employees who passed the guardrail to the sump site of the rail was not reasonably foreseeable (WorkCover Authority of New South Wales (Inspector Bultitude v Grice Constructions Pty Ltd (2002) 115 IR 59 at 77). 120 The defendant had not adduced any evidence to discharge its onus in relation to a defence under s 53(b). Rather, to the contrary, it was submitted, the simple and practical step of placing mesh around the sump at No 3 shaft, as was done at No 1 shaft, or a clear direction to Mr Hill not to venture into the area on the sump side of the guardrail would demonstrate adequate control and the practicability of that control (Inspector Barnard v Rail Infrastructure Corporation, at paragraph [133]). 121 The prosecutor accepted that, if an instruction had to be drawn, it was most likely that Mr Hill himself would have been called upon by the employer to do so. It was submitted, however, it was management's responsibility and not Mr Hill's responsibility, to assess his own risks in the work context. 122 Counsel for the defendant emphasised that, in this area of the mine, where no one else appeared to work but those attending to the pump, there were in fact two barriers. There was the mesh barrier and then there was the guardrail. Further, there was the brick weir which had to be stepped over. There was no work requirement and no known reason why a person such as Mr Hill would go to the other side of the handrail. 123 For the defendant, it was submitted that the prosecution runs squarely into the cases on causal nexus: the error of the prosecution's approach was to concentrate on the fact of the accident - all it had proven was that an accident took place and Mr Hill had drowned. The prosecution had not proven the connection between the drowning, or risk of drowning, and the employer's act or omission. 124 This was clearly a safe system charge as demonstrated by paragraph 18 of the Application. The prosecutor had to establish that the failure to provide a safe system of work created the risk and he had failed to do so to the requisite standard. It was in these circumstances that the defendant's reliance on s 53 was very much an alternative. 125 The defendant accepted that, on the essential matters of fact, there did not appear to be any contest. There were some statements in evidence about which the parties had a different approach but that was the extent of the departure. 126 The fact that there was no written or oral procedure in place did not advance the prosecution case. There was nothing in the evidence to suggest that the lack of those procedures created a relevant risk. Indeed, the system of work was able to be established from the evidence and this was not unusual in cases under the Act. In any event, a piece of paper with instructions may not amount to a safe system of work or amount to an effective safe system of work. From the evidence, it was established that the system of work was that the pump had to be brought on to the site and in order for that to be done an external mesh barrier had to be breached. The area was certified as safe for work by the Mine Deputy. In relation to the pump, the hoses had to be removed and reconnected to the new pump. Mr Hallett had assisted in this task before and recognised Mr Hill to be the expert on working with pumps. Mr Hallett knew what the tasks were that had to be performed before he was at the work site and there was no difficulty involved in those tasks. They both had training and experience which enabled them to understand what they were to carry out in the way of work on that day. Further, Mr Hill had installed the pogo stick, and attached it to the bottom rail of the handrail. While operating the pogo stick the foot valve at the end of the suction hose could be extracted from the sump without difficulty and in a way which did not involve, for any purpose, the movement from the safe side of the handrail to the other side of the handrail. That was the system of work and it did not involve anybody going over the handrail. The handrail was there to prevent inadvertent entry into the sump. The handrail was constructed to the Australian standard. It was Mr Hallett's evidence that there was no reason he knew of why a person would go to the other side of the guardrail in order to perform this work. That view was supported by a number of others, both experienced investigators and persons experienced in mine works. Those investigators saw the system of work that kept the employees on the safe side of the guardrail but could not find a reason for Mr Hill being on the other side of the guardrail. 127 The further difficulty for the prosecution case was said to be the last sighting of Mr Hill crouching behind the fence. Thirty or forty seconds later he was in the sump moving away from Mr Hallett who could not reach him. Another difficulty was that Mr Hallett's description of Mr Hill was that there was no movement. The mere fact that Mr Hill could drown in the water was, by itself, not sufficient - the prosecution had to establish the act or omission of the employer that created the risk. 128 In relation to the prosecutor's submission that no procedure was ever contemplated in relation to Mr Hill's work on that day, the defendant stated that Mr Hill organised his work, organised Mr Hallett to assist him and organised for the Mine Deputy to clear the area before the work was commenced. This had to be viewed in the context of the work being straightforward, with Mr Hallett accepting that the most difficult part of the whole job was carrying the pump for 200 or 300 metres from the ventilation access tunnel to the sump area. That is why Mr Hallett had been organised to assist Mr Hill. 129 In relation to the submission that Mr Hill usually worked alone, that was in compliance with the Coal Mines Regulation. There was no evidence to suggest that Mr Hill was not appropriate to have an authority to work on his own nor was it inappropriate to have that authority in relation to the work that he usually performed, including the work on this day. Significantly, s 33(2) of the Act provided: A person is not guilty of an offence under Part 3 in respect of any act or omission which is expressly required or permitted to be done or omitted by or under the associated Occupational Health and Safety Legislation. By s 39 of the Act, amongst other provisions, the Coal Mines Regulations Act 1982 and the Regulations and Rules made thereunder were, for the purposes of the Act, to be associated with Occupational Health and Safety legislation. The Regulation permitted Mr Hill to be authorised to work alone underground. 130 The absence of a sign indicating danger associated with the sump did not create a risk. The sump did not become less dangerous because there was a sign - in any event, that was not the thrust of the charge which was based on a safe system of work. There was no need to go into the sump for any purpose in the way in which this work was usually performed. 131 The presence of the guardrail was not just an indication of danger, as suggested by the prosecutor: on the evidence it was understood to be a barrier for the sump. It did not have a gate in it and it was understood in the operation of the mine as preventing access to the sump. That barrier operated quite apart from the primary source of protection, which was the mesh fence. 132 As to the suggestion that no one at the mine was aware of the depth of the sump, it was not conceded to be a relevant factor. What was important was that everyone knew there was a handrail and that the handrail operated to prevent access. In any event, Mr Hallett knew the sump was deep and the fact that he could not be precise as to how deep did not matter, the point was that he knew it was deep. Importantly, there was no evidence to suggest that people did not know that the sump was there, that is, relevant people who might come to that area in the course of their work. Mr Hallett accepted in his evidence that it was common knowledge within the mine that the sump was deep at No 3 shaft. 133 In relation to this sump, on the evidence, its only purpose was the collection of water. The use of steel plates across the sump was inappropriate on Mr Wynne's evidence. In any event, there was a difficulty in covering the sump with a steel plate when its purpose was collecting water. 134 The defendant rejected that there was a safety issue raised by the darkness, reduced visibility and the use of the cap lamps. It was submitted that the cap lamps were appropriate and they provided illumination to do the work without any difficulty. They were the type of cap lamps regularly used in the mining industry and they were used by the investigators when they went underground. Experienced miners and investigators were able to adequately see, both for the purpose of investigating the scene and for carrying out tests to see what was involved in performing the work including removing the suction pump with the foot valve attached. Nor was there any evidence to suggest that the cap lamps were defective in any way. Mr Hill's cap lamp was retrieved from the sump and was still operating. 135 Nor was there a difficulty with the fact that the water level had risen. That fact was not in issue but it did not create a difficulty with the work. Those who came to investigate the scene mentioned nothing about the level of the water as creating a difficulty or creating a difficulty for carrying out the work. The water level created a need for the work to be performed because the pump had failed and needed to be replaced. The proposition for the prosecutor was not advanced by reference to the water being brown and murky. The Mine Deputy had cleared the water in that state as part of the work area and granted access to Mr Hill and Mr Hallett. There was no evidence that the colour or murkiness of the water created a safety problem. Again, it had to be remembered that people working there had cap lamps and, given that the work to be performed had to be carried out on the safe side of the guardrail, the state of the water simply did not matter and did not create any safety issues. 136 The defendant could accept that No 3 shaft was remote in the scheme of the mine but nothing turned on that. People who came from other parts of the mine were able to access the work area but it did take time to get there using transport and walking. 137 It was significant that the prosecutor accepted that Mr Hill was a person who would not have taken unnecessary risks. The defendant agreed with that description. The Mine Manager, Mr Wynne, had described him as capable, reliable and a safe, conscientious worker. Mr Hallett had given a similar description. The investigators said that description was established from their enquiries. Those matters made it even more difficult for the prosecution to establish the necessary causal nexus in this matter. 138 In relation to Mr Hallett's evidence about the bobbing movement he observed taking place before Mr Hill sank below the water, the defendant submitted that this evidence raised the possibility, dealt with in Detective Thomson's statement and investigation, that Mr Hill may have decided to get into the sump. That was another reasonable hypothesis which did not have to be proved as a fact. In circumstances where there was no reason disclosed on the evidence for Mr Hill to be in that sump, then the reasonable hypothesis available on the material, consistent with innocence, in respect of the particular charge, should be weighed in favour of the defendant. In this respect, the defendant relied upon the judgment of Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1983-1984) 153 CLR 521 at 536, namely: It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless, the jury cannot view a fact as a basis for an inference of guilty unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence. In Haynes v C I & D Manufacturing Pty Ltd, a Full Court of the Industrial Court made the following observations in relation to a case of circumstantial evidence: As observed by Schmidt J, there was no direct oral evidence of what actually occurred. … the case therefore turned on circumstantial evidence. Her Honour approached the assessment of such evidence, correctly in our view, by reference to what was said by Dixon J, with whom Latham CJ agreed, in Martin v Osborne (1936) 55 CLR 367 at 375 - 'if an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference'. For ourselves we would only add what Dixon J further said in that respect in the same passage (at 375): In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed (at 152-153). Here, there was a tragic accident but the fact of its circumstances, being inexplicable, was a significant matter and a very significant matter in light of Detective Thomson's evidence regarding the investigations he undertook. 139 The defendant then turned to the provisions of s 53. The evidence demonstrated that there was a mesh barrier and a secondary barrier, the handrail. The handrail was built to relevant standards and built to deal with inadvertence. There was a system of work that did not involve, in any of its aspects, working on the other side of the rail and there was no suggestion that something else could have been reasonably, practically done - all the practical steps were taken. 140 The prosecution's suggestion that a practical step was placing mesh around the sump does not overcome the problem that the work still has to be done and there still has to be access to the sump for the purpose of having the pump operate. The submission of a mesh fence ignores the existence of the first mesh fence. 141 In relation to the submission that there was no clear direction given to Mr Hill not to venture into the area behind the guardrail, the question arises as to the effectiveness of such a direction. Nobody could say why Mr Hill was there. This issue also had to be considered in the context of the defendant providing a guardrail built to the proper standard. That was part of the reasonably practicable steps taken by the defendant and the Act does not require the defendant to take extraordinary steps to deal with something that is so unlikely as to be something that could not be contemplated. When all the facts were put together. it was simply impracticable for the defendant to do anything else than it had already done. DELIBERATION 142 The evidence relied upon by the prosecutor concerns the performance of a comparatively simple task in an underground mine. In light of the summary of that evidence set out earlier in this judgment, I am able to consider the essential allegations making up the charge without the need for further detailed reference to that evidence. 143 The terms of the application for prosecution have already been set out. Clearly, a number of paragraphs refer to factual matters which were not in contest. Those aspects which most clearly bear upon the nature of the charge commence with paragraph 13 and the allegation that the water was brown and murky in the vicinity of the pump and that the water level had risen to the edge of the sump (where the deeper water commenced), which was not visible. The evidence certainly supports the fact that the water was either brown or murky or contained silt. Quite apart from the defendant's capacity to alter the murkiness of the water, the evidence from the numerous people who came to the scene to investigate the accident did not mention, in any respect, the fact of the dirtiness of the water as creating some unsafe working environment. Indeed, there was evidence that despite the silt, the footing was sure and even the sill of the sump, beyond the guardrail, was said not to be slippery. Both Mr Hill and Mr Hallett had moved into this area and had largely completed the task before Mr Hallett left to bring back the foot valve. The level of the water beyond the brick weir was said to be just above gumboot level. I am unable to find that the murkiness of the water and the level of the water was, in the circumstances of the work being performed, unsafe. It has to be borne in mind that this was a work area where there was likely to be water and where the types of functions being performed on that day by Mr Hill and Mr Hallett were likely to be performed in circumstances where there would be dirty water lapping around their boots. The murky water did not disguise the rail or the presence of the sump. This was not an unexpected circumstance for them to work in and it presented no risk to the health and safety of persons in their position performing those duties. 144 In paragraph 14 of the Application, there is a reference to the vicinity of the sump being in complete darkness with the only source of light being the cap lamps worn by Mr Hill and Mr Hallett. I accept the defendant's submission that the cap lamps were in common usage in the mining industry and provided adequate light for the work being performed on this occasion. In addition, there was an abundance of evidence from experienced miners and investigators who attended at the scene accepting the adequacy and appropriateness of the light provided by the cap lamps. They were able to perform the work functions that had been undertaken on that day without apparent difficulty. There is no basis in the evidence, in my view, for a conclusion that there was inadequate lighting for the performance of these tasks such as to amount to a detriment to safety. There was no lack of lighting exposing employees to the risk of drowning. 145 Paragraph 15 refers to No 3 shaft being known to have iron oxide or iron deposits built up on the side of the shaft, which sometimes fell down. This aspect was, in fact, investigated but appears to have no foundation in relation to No 3 shaft. The prosecution case appears to have proceeded on the basis that a possible reason for Mr Hill ending up in the sump was that he might have been hit by a falling oxide or iron deposit. While there is evidence there was a small bruising over his right eye the medical evidence was that this was trivial. In addition, there appears to be no evidence of deposits on the handrail which would suggest such an occurrence. Further, witnesses were cross-examined to establish that there was a roof along the entrance to the shaft which extended up to the area where Mr Hill and Mr Hallett were working. It was beyond this roof coverage that the shaft opened up which may have been the source of falling iron deposits. In any event, the area was examined by investigators and there was no evidence of an oxide deposit falling or having come off any relevant area in the vicinity where the work was being performed by Mr Hill at the guardrail. There is no basis in the evidence for this proposition, especially from the Deputy who had just certified the area as safe for the work proposed. 146 Paragraph 16 of the Application refers to the area in the vicinity of the sump at No 3 shaft being "relatively inaccessible and, at the time of Mr Hill's accident, the nearest mining personnel was some two kilometres away". The evidence showed that it took up to 25 minutes for others to arrive at the scene but that fact alone carries the prosecution case nowhere. The evidence was that no one else performed work in this area of the mine. It was usually Mr Hill, or Mr Hill with Mr Hallett, who performed work in this area relating to the pumps. It is inevitable that in some places of work, persons will be required to operate at a distance from others who may be able to render them assistance in times of emergency. A number of matters have to be considered. Firstly, Mr Hill was authorised under the Regulation to work alone. On this particular day, he took the added step of arranging for the assistance of Mr Hallett. The area had also been cleared, as required, as being safe for that work by the Mine Deputy. As the circumstances of Mr Hill's death demonstrate, the isolation of the area played no particular role in the alleged risk of drowning. There were means of raising the alarm and, although one team was unable to use a telephone, Mr Hallett was able to travel to a telephone and inform the crib room of the accident. The prosecutor was unable to establish the requisite connection between the relative isolation of this workplace and the detriment to safety alleged. Further, Mr Hallett was present and was unable to assist - isolation, alone was not the problem. 147 I am also unable to accept the prosecution's submission that there was a failure to implement or provide an adequate system of work. This was a relatively simple task. It could not be made safer by reducing the work to some written instructions. The work involved very experienced miners with Mr Hill authorised to work by himself underground. The system of work involved having the area checked by a Mine Deputy and having an established mesh fence and a guardrail as a warning sign. Both men knew that the sump was there - it was intimately connected with the purpose of their work that day. This system would not have been rendered any safer by a sign indicating the dangers associated with the sump. The placing of a sign or a work direction that employees should not go behind the guardrail would have some force if the presence of the sump was otherwise unknown or there was some other danger associated with changing the pump. The inability of a mere sign to provide a safe system of work was demonstrated by the recent judgment in Workcover Authority of New South Wales (Inspector Martin) v GrainCorp Operations Limited [2002] NSWIRComm 312. Staunton J observed at paragraph [20]: That may well be a sign that the defendant has but, on all the evidence before me, even if the defendant's view was that their employee should be not where Ms Seibold was, the reality is that she was … This part of the prosecution case seems to proceed on the basis that, if a person like Mr Hill had been told not to go beyond the guardrail, then this accident would not have occurred. Apart from the error of focussing upon this accident, the submission also assumes that Mr Hill willingly ventured beyond the guardrail. Such a sign would have been to no avail if the other prosecution hypothesis had been established, namely, that Mr Hill had been hit by falling debris and fell into the sump, or simply fell into the sump. 148 The fact that the actual or approximate depth of the sump was not generally known, again, does not advance the prosecutor's case. This was an area where people generally did not work. It was, however, an area where Mr Hill and Mr Hallett worked and Mr Hallett was able to give evidence that both these employees knew that the sump was deep. That was sufficient knowledge to be informed of the danger of going beyond the handrail barrier, which itself was accepted as indicating danger. 149 Steel plates were apparently not used in this shaft because management considered the atmosphere there to be somewhat more corrosive than in the other shafts. The Mine Manager, Mr Wynne, pointed out, that if steel plates had been placed over the sump and had corroded to the extent that it would not support a person's weight, another detriment to safety would have been created. In addition, counsel for the defendant accepted that the purpose of the sump was to collect water, a task likely to be fundamentally impeded by covering the sump with a steel plate. 150 There was a further suggestion that placing another mesh fence around the sump itself would have avoided this accident and thereby the detriment to safety. The proposition, however, failed to deal with the necessity to be able to place the suction hose and the foot valve into the sump. The erection of such a fence also faced the difficulty of being so constructed as to be able to be removed when work was required on the sump itself. The significance of this aspect is that, while the mesh fence and the guardrail provided against inadvertence and inattention, there do not seem to have been any means available to stop a person from entering the sump if they wished to do so. It is accepted that employers are to be proactive and are to make provision not only in relation to experienced and careful employees but also to those who are inexperienced, negligent or careless. I am, however, unable to detect a relevant failure or omission in this regard such as to render the defendant liable to a criminal prosecution. 151 The issue of causation was central to the defendant's case. In that context it is appropriate to refer to the judgment of the Vice-President, Walton J in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) at 253: As previously mentioned, the defendant raised the question of causation. Many decisions of this Court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s 15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a 'causal nexus' between the conduct of the defendant and the consequent risks to the health, safety and welfare of its employees: (see McMartin v The Broken Hill Proprietary Co. Ltd (2000) 100 IR 241; Drake Personnel Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 91 IR 432 at 449; Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209; State Rail Authority (NSW) v Dawson (1990) 37 IR 110, at 120-121; Haynes v C I & D Manufacturing Pty Ltd 1995) 60 IR 149, at 1560157 and Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50). There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: see WorkCover Authority (NSW) v Maitland City Council (1998) 83 IR 362 at 377. However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety. In Drake (at 452-453) the Full Bench stated: The general duties created by the OH&S Act are directed at obviating 'risks' to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. This consideration is carefully explained in a decision of the Full Court of the then Industrial Court of NSW in Haynes. Commenting on the reasoning of the trial Judge, their Honours said (at 156-157): The commencing point of her Honour's consideration of the evidence was the uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting him as it came to a stop over the pit in which he was working removing the slurry. Her Honour then, correctly in our view, commented that '(t)he occurrence of the accident itself does not however establish the commission of the alleged offence': see Dawson (at 120-121) and McMartin v The Broken Hill Proprietary Co Ltd (at 244). But, her Honour then concluded, concerning the case against Manufacturing that: '(I)t needs to be established that some action taken by (Manufacturing), or the failure to take some action, was casually connected with the front end loader hitting Mr Chen. It seemed to (her Honour) that to approach the question of the commission of the offence in any other way, would be to remove the requirement placed upon the Prosecution to establish, beyond reasonable doubt, that it was the defendant which failed to 'ensure the health, safety and welfare at work' of Mr Chen and Mr Ding. The prosecution of Industries was considered by her Honour according to '(M)any of the comments … made in relation to the prosecution against manufacturing'; again, a causal connection between some act or omission by Industries and the accident was found to be necessary. Her Honour focussed attention of the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondents were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That over emphasis led to a misunderstanding by Her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objectively therefrom. Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson v McMartin is but a risk, or in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title, indicates, has the prime purpose ' (t)o ensure the health, safety and welfare of persons at work' and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. We adopt that reasoning as a correct statement of law and principle in relation to Section 15 of the Act. 152 In applying that approach to the present circumstances, it is necessary to begin with the alleged risk. This was clarified at the beginning of the proceedings by the prosecutor identifying it as the risk of drowning. That is the risk that the prosecutor alleges that the defendant failed to ensure against. I am unable to identify any particular omission or failure of the defendant which is causally connected to this identified risk. As has been stated earlier, this was an area of the mine where generally other employees did not work. The work to be performed at the No 3 shaft and the sump was work normally performed by experienced miners such as Mr Hill and Mr Hallett. As I have found, there was a system of work which identified what was to be done and how. There was also a system where the area had to be declared safe by the Mine Deputy before work commenced. The men were provided with safety apparel and the means to perform their work safely. The area was fenced by both the mesh fence and the guardrail as indicative of the danger of the sump that lay behind the guardrail. Having reached that view, it follows that the prosecution case has not been made out to the requisite criminal standard. 153 During the course of the hearing I was briefly attracted to the proposition that the close presence of another person when work was being performed at the edge of the sump in No 3 shaft was an obvious and effective method of work. Mr Hallett did not fulfill this requirement on the day, because he was sent away, albeit not far away and only briefly. That is why I gave consideration to the necessity of a "close presence " - so that the other person would be on hand immediately to render assistance if needed. The proposition also seemed to have the benefit of not imposing another costly level of supervision as the evidence disclosed; firstly, that the risk of drowning appeared only to exist at the No 3 shaft; secondly, there was a pattern of two employees doing this work when required, thirdly, this work at the sump did not appear to be a frequent requirement, and fourthly, no other employees were really required to perform work in this area. It was common ground, however, that the Coal Mines Regulation permitted an adequately trained employee to work unaccompanied underground. Mr Hill was authorised under this regulation to work alone. I accept the defendant's submission that the operation of s 33 and s 39 of the Occupational Health and Safety Act 1983 had the effect of rendering a person not guilty of an offence under Part 3 in respect of any act or omission which is expressly permitted to be done under associated legislation (here the Coal Mines Regulation Act 1982 and the Regulation). In addition, the defendant correctly pointed out that there was no attack on the issuing of this authority to Mr Hill, either because the Mine Manager could not have reached the requisite level of satisfaction and/or because Mr Hill was not appropriately trained. This simple and effective solution is therefore of no moment in the present proceedings. 154 Because of the way in which I have approached this matter, it is unnecessary to delve into the matters raised by Detective Thomson's investigation. Because of the airing which has been given to one important aspect of that investigation, I should state that the evidence would not permit a conclusion, as a creditable hypothesis, that Mr Hill may have taken his own life. Further, in my view, nothing turns on the alleged inconsistency of the eyewitness account given by Mr Hallett of Mr Hill's drowning and the manner it was said to be contradicted by expert evidence. The evidence disclosed that Mr Hallett was distressed by Mr Hill's death: in recounting the circumstances during interview, he changed his mind about the proper description of Mr Hill in the water. He says "I saw what I saw": the accuracy of his recollection may, in any event, have been affected by the stress of the circumstances - this is no reflection on Mr Hallett. I have real doubts, in any event, that much of this evidence qualified as expert evidence (especially having regard to the judgment of the Court of Appeal in Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705) but, in light of the conclusion that I have reached, it is unnecessary to further consider that matter. ORDER 155 The order of the Court is: The summons against the defendant under s 15(1) of the Occupational Health and Safety Act 1983 is dismissed. 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