Industrial Court of New South Wales CITATION: Rodney Morrison v Powercoal Pty Ltd [2006] NSWIRComm 157 Prosecutor: PARTIES: Rodney Morrison Defendant: Powercoal Pty Ltd FILE NUMBER(S): IRC3076 of 2001 CORAM: Kavanagh J CATCHWORDS: OHS Act s15(1) - mining work – steel drift haulage rope attached to dolly car - employees being lifted to the surface - steel rope snapped - knowledge of defendant - failure to maintain and/or replace defective rope - foreseeability of breach - no prior convictions at the time of incident - plea - penalty LEGISLATION CITED: Occupational Health and Safety Act 1983 Crimes (Sentencing Procedure) Act 1999 Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 290 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 CASES CITED: Markarian v R (2005) 215 ALR 213 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and 2000 115 A Crim R 104 HEARING DATES: 27/03/06 DATE OF JUDGMENT: 05/25/2006 Prosecutor: Mr R. Burbidge QC with Mr I. Taylor of counsel Solicitor: Crown Solicitor's Office LEGAL REPRESENTATIVES: Defendant: Mr R.J. Buchanan QC with Mr M. Shume of counsel Solicitor: Sparke Helmore JUDGMENT: - 24 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Thursday 25 May 2006 Matter No IRC 3076 of 2001 RODNEY MORRISON v POWERCOAL PTY LTD Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2006] NSWIRComm 157 1 This prosecution is brought by Rodney Morrison, the Director, Mine and Forest Safety Performance, Department of Primary Industries (previously Assistant Director of Performance Improvement of the Department of Mineral Resources) against Powercoal Pty Ltd (the defendant) by way of an Amended Application for Order and issued pursuant to s15(1) of the Occupational Health and Safety Act 1983 (the Act). 2 The Amended Application for Order with particulars relevantly reads: 1. This is an application for an order under s. 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 and s. 168 of the Industrial Relations Act 1996 brought by Rodney Morrison, the Director, Mine and Forest Safety Performance, Department of Primary Industries (previously Assistant Director of Performance Improvement of the Department of Mineral Resources of new South Wales), 516 High Street, Maitland in the State of New South Wales and a person authorised by the Director General of the Department of Mineral Resources, who is a Prescriber Officer pursuant to s. 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter. 2. The defendant is Powercoal Pty Ltd, ACN 052 533 070 ("the Corporation"), formerly a wholly owned subsidiary of Pacific Power Limited, and the proprietor and operator of the Wyee Colliery (aka Wyee State Coal Mine). The Corporation's Head Office is situated at Fassifern Road, Fassifern, NSW, 2283. . . . On or about 6 May 1999, at the Wyee Colliery, about four kilometres east north east of Wyee, in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Kenneth John Sellers, Stephen Leon Saurins, Kenneth Bruce Johns and Paul Piper contrary to s15(1) of the Occupational Health and Safety Act 1983 . 4. PARTICULARS: (i) That the defendant failed to provide or maintain plant that was safe and without risk to health of all its employees, in particular, Kenneth John Sellers, Stephen Leon Saurins, Kenneth Bruce Johns and Paul Piper; (ii) The steel wire rope, known as a drift haulage rope, installed in the men and materials drift (also known as "No. 2 drift") at Wyee Colliery was attached to rail mounted trolleys and a large winch at the mine surface. Men and materials were lowered and raised in the No. 2 drift by means of the trolleys and drift haulage rope attached to the end of the rope and attached to the winch; (iii) Due to a failure to maintain and/or replace the drift haulage rope, over time the rope became defective such that it should not have continued to be used in the manner in which it was being used. (iv) On 6 May 1999, the defendant employed Kenneth John Sellers, Stephen Leon Saurins, Kenneth Bruce Johns and Paul Piper ("the employees"); (v) On 6 May 1999, the employees were being lifted from the lower seam (Fassifern seam) of the mine at Wyee Colliery when the rope broke due to its defects. The employees were inside a dolly car, at the time, being driven by Sellers. Three of the men bailed out of the dolly car. The dolly car started to descend rapidly back down the drift with the driver still inside. It crashed against the drift wall at the Fassifern seam and finally came to rest inbye the great Northern Seam track end. Sellers was sent to hospital suffering injuries. . . . 3 The defendant pleaded guilty to the charge. 4 Mr R. Burbidge QC with Mr I. Taylor of counsel, for the prosecutor tendered a Statement of Facts which are agreed and Further Facts which are agreed but the relevance of which was in dispute. He also relied on a tender bundle of documents which included Wyee Colliery-Plan showing reportable occurrence in Men and Material Drift; Plan drawn in reference to reportable occurrence in M&M Drift 6 May 1999 - General Layout Rope Failure dated 11 June 1999; M&M (No 2) Drift - Plan Showing Rolling Stock Witness Marks as at 13 May 1999 - Identified by W. Koppe dated 11 June 1999; Site Photographs taken by Wyee personnel on 6 and 7 May 1999; Site photographs taken by the Department of Mineral Resources personnel on 8, 20, 31 May 1999; facsimile from Grant Millard, BHP Ropes to Brad Murray, Wyee Colliery entitled "Wyee Drift Haulage Inspection" dated 30 June 1998; Site Memorandum No. 4276 from Mike Christie to Steve Ferris dated 30 December 1998; BHP Lifting Products Report ED 192-Inspection and Assessment of Wyee Colliery - Main Drift Rope prepared by Hans Tiller; BHP Ropes - Wire Rope Sample - Certificate No. ST7632 dated 13 April 1999; BHP Ropes - Technical Report - Results of examination and testing of 52mm 6 x 28 (15/12/12BR)/FCB1870 RHLL Drift Haulage Rope from Wyee Colliery conducted by Mr Ian McKenzie, consulting engineer for BHP Ropes dated 22 June 1999; examination and disassembly of a Tommy Dodd Rope Roller removed from Wyee Colliery No. 2 Drift by David Ng, TestSafe Australia, dated 12 July 1999; examination and testing of Steel Wire Rope Section - following a Drift Rope Failure, conducted by David Ng, TestSafe Australia dated 26 August 1999; Department of Mineral Resources New South Wales - Guidelines for Examination, Testing and Retirement of Mine Winder Ropes for Use in Coal Mines, dated March 1999; Reports - CMRA 1982 section 103 - Main and Service Haulage & shaft Winders - dated September 1998, 24 October 1998, 7, 8, 12, 13 and 14 April 1999; Reports - CMRA 1982 Section 103 - Underground Outbye and Surface Locomotives/Personnel Cars, Diesel and Battery Rubber Tyred Vehicles and Job Cards for Work Orders; Report of Inspection of a Deputy's District Made During Shift Outbye District; Prior Conviction Certificate issued by WorkCover New South Wales dated 9 September 2005 and Prior Conviction Certificate issued by the Department of Primary Industries dated 23 March 2006. 5 The defendant was represented by Mr R.J. Buchanan QC with Mr M. Shume of counsel. The defendant relied on much of the evidence tendered by the Prosecutor and also relied on the affidavit of Mr Andrew Myors, General Manager, Mining and Technical Services for Centennial Coal Company Limited sworn 23 March 2006. 6 Relevantly, the Statement of Facts states: 1. At all material times, the Prosecutor was a Prescribed Officer pursuant to section 48 of the Occupational Health and Safety Act 1983 authorised by the Director-General of the Department of Primary Industries (formerly the Department of Mineral Resources) to institute proceedings in this matter. 2. At all material times, Powercoal Pty Ltd ("the Company"), ACN 052 533 070, was a wholly owned subsidiary of Pacific Power Limited and the proprietor and operator of the Wyee Colliery (aka Wyee State Coal Mine), with its Head Office situated at Fassifern Road, Fassifern, NSW, 2283. 3. Wyee Colliery was situated about 4 kilometres east north east of Wyee in the State of New South Wales. 4. At all material times, the Company held Consolidated Coal Leases 718 and 719 (Act 1973) and Authorisation 384 (Act 1973) in relation to Wyee Colliery. 5. At all material times, the Company employed: i. Kenneth John Sellers as a production mineworker; ii. Stephen Leon Saurins as a production mineworker; iii. Kenneth Bruce Johns as a production mine worker; iv. Paul Piper as a production mineworker. 6. At all material times, the Wyee mine had two coal seams which were serviced by a men and materials drift ('No 2 Drift') and a conveyor drift. The No 2 Drift had an average gradient of 1 in 3.5, but in parts it was steeper with a gradient of 1:3.185. The drift accessed two seams, the upper seam, the Great Northern Seam and the lower, the Fassifern seam. 7. The Great Northern Seam pit bottom was directly down the drift at a distance of 725 metres from the portal. There was a rail turn out in the drift at 688 metres from the portal at an angle of 155° that gave access to the Fassifern seam pit bottom which was a further 120 metres from the turnout. 8. The haulage system used in the No. 2 Drift, called the 'No. 2 Men and Materials Haulage System', was the primary system for the introduction and removal of employees and equipment from the mine. Materials and employees were lowered and raised via the No. 2 Men and Materials Haulage System to the seams on rail mounted trolleys attached to a steel wire rope, known as a drift haulage rope, which was in turn attached to a large winch at the surface. The winch was located on the surface approximately 100 metres from the entrance or portal to No. 2 drift. 9. The winch was controlled remotely by a radio, mounted in a small trolley (dolly car), attached to the end of the rope. 10. The dolly car was the first trolley attached to the rope with other trolleys (man transport cars and material trolleys) being inbye the dolly car, attached to it. The dolly car could have up to five persons when pulling materials. However, when carrying heavy loads the dolly car should only carry so many persons as necessary to control the load. When pulling man transport cars, there could be up to 16 employees going up or down in each dolly car or up to 92 persons if 2 man transport cars are attached. The trolleys on which materials were lowered and raised were low flat trolleys or trailers called flat tops. The dolly car had brakes ('dump brakes') that would automatically engage in certain circumstances. The 'dump brakes' on the dolly car would not be sufficient to stop the dolly car or any attached flat tops. Flat tops which could be attached to the dolly car did not have dump brakes or any other type of independent braking system. 11. The No 2 Drift had indentations along the walls, known as man-holes, where employees could stand out of the way of a dolly car or flat top. 12. At all material times the winch at Wyee was fairly modern for the NSW coal mining industry. 13. In compliance with requirements to obtain approval for the operation of winding apparatuses the company conducted a formal risk assessment in 1994. The Department of Mineral Resources approved the operation of the winding apparatus. That risk assessment identified, amongst other matters, the fact that in the event of a rope failure there was a risk of a possible fatality. 14. The life expectancy of a steel wire rope is approximately 5 years or longer with good maintenance. 15. The Australian Standard for Steel Wire Ropes (AS 2759-1985) states: "Rope life can be reduced by a number of factors. A rope during its service, is constantly undergoing changes, and eventually deteriorates as a result of abrasive wear, wire breaks, loss of lubrication, corrosion, and avoidable damage … Inadequate lubrication can result in corrosion, heavy abrasive wear, fretting between wires and stiffening of the rope."(p.45). 16. On 14 February 1998, the steel wire rope ('the rope') was installed in the No. 2 drift at Wyee Colliery. 17. The ropes were manufactured, supplied and inspected by BHP Steel (AWI) Pty Ltd, trading as BHP Ropes or BHP Lifting and Industrial Products ('BHP'). Prior to supply the ropes are destructively tested and a certificate is issued which provides the specifications for the use of the rope. The rope was rated at 1870 kN. 18. At the time the rope was installed it had a diameter of approximately 53.7 millimetres and was in excess of 1000 metres long. The rope consisted of many individual wires laid into a helical arrangement which formed strands which were in turn laid in a helical pattern around a non metal central core. The purpose of the core was to provide stability and support to the rope construction. The core assisted in keeping the round shape of the rope when the rope was bent around a drum, and rollers under load. Cores are designed to retain the internal rope lubricant. The rope contained 234 wires comprising 6 strands of 39 wires each. 19. From the time of its installation the rope deteriorated more rapidly than it should have. 20. On 26 June 1998 Grant Millard, Technical Engineer for BHP, carried out a non-destructive test on the rope. He identified the fact that the first 80-90m of the rope from the dolly car showed excessive wear. On 29 June 1998 he met with Brad Murray, Wyee Mechanical Engineer in Charge, and another employee of the company for the purpose of inspecting the No 2 Drift to see whether they could identify the reasons for the premature wear of the 80-90 m of rope adjacent to the dolly car. He reported his observations in a facsimile dated 30 June 1998. 21. The Department of Mineral Resources New South Wales published in March 1995 a document titled 'Guidelines for Examination, Testing and Retirement of Mine Winder Ropes for Use in Coal Mines, MDG 26' ('MDG 26'). The document was disseminated to relevant persons including the defendant on about March 1995. 22. The Defendant's Mechanical Engineer in Charge was aware of the existence of the Guidelines prior to the incident. 23. MDG 26, inter alia , provided: "3.2.2 All drum winder haulage ropes should be non-destructively tested at intervals not exceeding 6 months"; "3.2.4 More frequent non-destructive tests should be conducted if deterioration of a rope is evident, the minimum permissible factor of safety is being approached or the maximum permissible life is about to be reached"; 24. The defendant's records contain no report of any destructive or non-destructive testing of the rope in a 26 week period, that being in the months of July, August, October, November and until 29 December 1998. 25. Section 103 of the Coal Mines Regulation Act 1982 provided that "the manager of a mine shall prepare a scheme for the systematic examination or testing of electrical apparatus and mechanical apparatus at the mine". 26. As part of the mine's 103 scheme Mine employees performed daily and monthly inspections of the rope in No. 2 Drift. MDG 26 contained the following: "5.2 Further recommended retirement criteria The rope … shall be retired if any one of the following occur:- 5.2.1 The number of broken wires within a rope lay length , exceeds 5% of the total number of wires in the rope or 15% of the total number of wires within any strand (ref.1.2.7). Filler wires are excluded from the latter because of their minimal contribution to breaking strength and are not commonly used in mine winding ropes. … 5.2.3 A loss of more than 1 third of the original diameter of the outer wires (ref 1.2.7) ( APPENDIX B shows the effect on one rope construction). 5.2.4 (ref 1.2.7) Diameter reduction due to wear that exceeds 6% of the base line diameter measurement; 5.2.5 (ref 1.2.7) The loss of original rope strength ie. actual breaking force as determined by non-destructive testing exceeds 10%. Such should be estimated by a competent person and supported by comparison of destructive testing and non-destructive testing for that rope construction. … 5.2.8 Corrosion has caused noticeable pitting and loosening of the outer wires." 27. MDG 26 (ref 5.2.4) recommended that a rope was to be retired if there was a diameter reduction due to wear that exceeded 6% of the base diameter measurement. Retirement could be deferred if a person competent in the use of wire ropes recommended such after examining the results of tests outlined in 5.3.1 (MDG 26). The diameter of the rope was measured by Wyee Colliery personnel approximately every month as part of the section 103 scheme. The measurements taken by Wyee Colliery personnel on and from 1 October 1998 were as follows [recorded on Job cards for work order – part of 103 scheme.]: DOLLY CAR CENTRE END DATE (mm) (mm) (mm) 1/10/98 50.3 52.0 52.0 30/10/98 49.5 51 52 2/12/98 49.3 50.6 52.1 27/1/99 50 51.1 51.8 5/2/99 49.6 51.1 52.2 17/3/99 49.8 51.0 52.2 28/4/99 47.5 49.4 51.9 28. During the course of the investigation Mr Christe Operations Services Manager at BHP said that he stated on or about 30 December 1998 to Messrs Barrett, Coutts and Ferris of the Defendant the following: The rope was one of the worst he had seen in service. The rope was good enough to last for approximately another 4 weeks after 85m was cropped from it. 29. During the course of the investigation in late January 1999 Mr Christe said that a conversation took place between Messrs Christe of BHP and Murray of the Defendant in which an exchange to the following effect occurred: Christe inquired when the defendant would replace the rope. Murray responded that the rope was not being changed at that time. 30. On 4 January 1999 the Mines Check Inspector, Mr J Smith, was informed by David Oliver, Under manager in Charge, that the rope was planned to be replaced in late January 1999 and that there were no plans to take any heavy loads down. 31. Prior to replacing the rope, mining personnel decided to institute a programme to clean up No. 2 drift. When that programme was completed, the intention was to change the rope. As at 14 January 1999 Brad Murray advised Mr Smith that the rope had been deemed safe to be used and was going to be changed when the drift was cleaned and the rope rollers cleared. 32. In a memo dated 22 March 1999 to the Mine Manager the operations engineer stated "The mine has recently purchased a replacement haulage rope and planned to replace the rope February 1999, this was not possible due to high probability of damaging the rope due to the poor drift conditions". The memo further stated that: "This maintenance has been previously been carried out by the production stream at the mine, but due to lack of available labour this essential maintenance has been neglected". 33. In March 1999, the results of the three sections of rope taken for Destructive testing in December 1998 was received from BHP Ropes. The tests which were performed on 16 February 1999 revealed that sections of the rope tested had strengths of 710kN, 1125kN and 1665kN. This indicated that the sections of rope tested had deteriorated to between 40% and 94% of its original strength. Advice was provided by Hans Tiller of BHP Ropes that the rope should be changed. 34. A further sample was taken on 30 March 1999 and was tested on 8 April 1999 and identified that the section of rope tested had a strength of 1370kN. This was 73% of its original strength. 35. At about 3.10am on 6 May 1999, the four employees were being lifted from the lower seam (Fassifern seam) of the mine at Wyee Colliery when the rope broke at a point about 89 metres from the dolly car. The four employees were inside a dolly car, at the time, being driven by Sellers. Attached to the dolly car was a flat top on which there was a Multi-purpose vehicle called a chock carrier ('the MPV') which had been loaded with a long wall chock (metal roof support). The total weight of the load (including men) was some 58.65 tonnes. 36. Immediately prior to the rope breaking the four men experienced three surges, each one increasing in intensity. 37. At the third surge, three of the employees bailed out of the dolly car. The driver, Sellars, remained in the dolly car. 38. Upon the rope breaking the dolly car and flat top started to descend back down the drift with Sellars inside the dolly car. 39. An automatic valve caused the dolly car body to dump which provided some braking effect. In addition an emergency stop switch remote from the dolly car operated. The weight of the load was such that the braking effect on the dolly car was insufficient to prevent the cars from travelling down the drift, at increasing speed. 40. As the dolly cart travelled down, the 89 metres of severed rope still attached to the dolly car was pulled down with it. The end of the rope twisted and flayed as it was pulled down the drift. Of the three employees who had got out of the dolly car, one moved into a man-hole, while the other two lay on the ground to the side of the rail track. The end of the rope passed them without striking any of them. They saw the sparks created by the end of the rope striking objects. 41. The dolly car and flat top travelled about 175 metres before they crashed against the drift wall at the point where the two drifts intersect where the rail tracks divided at a Y-junction (this point was known as the Fassifern Seam Inset). The trolleys were derailed and collided with the septum of rock at the corner. They then travelled along the Great Northern track, and came to rest inbye the Great Northern Seam track end. 42. The flat top ended up about 18 metres from the point of collision with the drift wall. After the flat top stopped the MPV carrying the chock came off the flat top and travelled approximately a further 40 metres along the Great Northern seam. In so doing it travelled past the entrance of the crib room and past a work station, coming to rest near another work station without hitting any employee. 43. Sellers was found near the dolly car. He suffered a laceration to his head and was sent to hospital for a precautionary examination. He was discharged later that morning. The other employees were shaken but not injured. 44. The prosecutor asserted the propositions that the condition of the rope was such it was strained and needed changing and knowing the rope was in that condition, there was not procedures in place to replace the old rope with new rope. 7 In addition to the Statement of Facts, the parties agreed on a number of further facts. The defendant disputed their relevance. The facts went to the condition of the drift, particulars of which, the Prosecutor submitted, the court would find necessary to establish there was a lack of maintenance that led directly to the deterioration of the rope and to the risk of injury consequent upon the rope failing. It was submitted further that such facts must be of relevance to particular (iii) of the charge. 8 The court admitted the document and determined its contents "to be of limited interest in the context of establishing why the rope broke". The Further Facts state: 1 . During daily drift inspections in No. 2 Drift in the period from September 1998 to April 1999, defective items such as defective rollers were observed and reported. The reports, entitled Daily 103 Scheme Inspections of Main and Service Haulage and Shaft Winders recorded that the machinery was "safe" but the following defects were also noted: · 5/9/98 -"29m taken off #2 rope" · 23/9/98-"Sloping rollers on turn to Fassi need end for ending"; · 24/10/98-"Sloping rollers on Fassi turn need to be end for ended. Rope rollers at 25 manhole and 17 manhole need attending to"; · 6/12/98-"1 x 2m sample taken, plus 40m removed"; · 7/4/99-"Outer strand worn and some broken wires at dolly car end" – "REPORTED"; · 8/4/99-"Outer strands of rope worn and some broken" – "REPORTED"; · 9/4/99-"Outer strands of rope worn and some broken"; · 12/4/99-"Outer strand of rope worn and some broken" – "REPORTED"; · 13/4/99-"Outer strand of rope worn and some broken"; · 14/4/99-"Outer strand of rope (broken crossed out) worn and some broken" – "REPORTED'; 2. Deputies, employed by the mine in a supervisory role with responsibility inter alia for safety matters, issued reports from time to time recording problems with the No 2 Men and Materials Haulage System. The following problems were noted on the following dates: Need to replace rope rollers in No 2 Drift 17 March 1998 13 July 1998 3 February 1999 18 March 1998 21 July 1998 4 February 1999 20 March 1998 24 July 1998 9 February 1999 21 March 1998 29 July 1998 11 February 1999 23 March 1998 5 August 1998 12 February 1999 24 March 1998 17 September 1998 22 February 1999 25 March 1998 2 October 1998 23 February 1999 26 March 1998 2 November 1998 10 March 1999 20 April 1998 3 November 1998 12 April 1999 7 July 1998 5 November 1998 12 April 1993 9 July 1998 23 November 1998 14 April 1999 9 July 1998 16 December 1998 15 April 1999 10 July 1998 2 February 1999 Large vertical rope roller to be replaced in No 2 Drift 19 June 1998 26 June 1998 5 November 1998 22 June 1998 2 November 1998 9 November 1998 23 June 1998 3 November 1998 15 November 1998 25 June 1998 Middle vertical rope roller to be replaced 17 February 1999 22 February 1999 23 February 1999 25 February 1999 26 February 1999 Centre vertical rope roller at fassi points to be replaced 9 March 1999 9 April 1999 10 March 1999 ("worn to metal") 12 April 1999 11 March 1999 ("worn to metal") 13 April 1999 16 March 1999 14 April 1999 17 March 1999 15 April 1999 18 March 1999 16 April 1999 19 March 1999 19 April 1999 20 March 1999 20 April 1999 23 March 1999 21 April 1999 24 March 1999 22 April 1999 25 March 1999 23 April 1999 26 March 1999 26 April 1999 30 March 1999 28 April 1999 31 March 1999 29 April 1999 1 April 1999 ("down to metal") 30 April 1999 8 April 1999 Rope catching on rollers in No 2 Drift 2 July 1998 Winch rope wearing on ends of rope roller in floor 3 July 1998 Winch rope on main haulage rubbing on floor-need for more rollers at closer spacing 23 November 1998 24 November 1998 25 November 1998 27 November 1998 Coal to be cleared 17 September 1998 Pit bottom pump leaking over Drift belt 29 September 1998 9 October 1998 14 October 1998 6 October 1998 12 October 1998 15 October 1998 8 October 1998 13 October 1998 16 October 1998 Need to re-ballast and lift sections of track 30 September 1998 (flat car riding up on floor) 1 October 1998 (flat car riding up on floor) 2 October 1998 Coal spillage 30 September 1998 Rope running on floor 25 March 1998 Pump water from Pilot Drift 18 November 1998 19 November 1998 26 November 1998 Sumps need to be cleaned out 21 December 1998 24 December 1998 29 January 1999 22 December 1998 29 December 1998 1 February 1999 23 December 1998 30 December 1998 Rope diversion rollers above fassi points to be replaced 17 February 1999 18 February 1999 19 February 1999 22 February 1999 Rope sheave above fassi points to be changed 26 February 1999 8 April 1999 9 March 1999 12 April 1999 10 March 1999 13 April 1999 11 March 1999 ("worn to metal") 14 March 1999 16 March 1999 15 April 1999 17 March 1999 16 April 1999 18 March 1999 19 April 1999 19 March 1999 20 April 1999 22 March 1999 21 April 1999 23 March 1999 22 April 1999 24 March 1999 23 April 1999 25 March 1999 26 April 1999 26 March 1999 28 April 1999 30 March 1999 29 April 1999 31 March 1999 30 April 1999 1 April 1999 ("down to metal") Haulage rope roller to be changed at fassi points 1 March 1999 4 March 1999 3. An inspection was carried out in the drift, which revealed that on 6 May 1999: a. Many rollers over which the rope travelled within No.2 drift were caked with dirt and had worn grooves; b. Rollers were not properly spaced throughout the drift; c. A majority of the rollers were missing; d. Some rollers had seized and were unserviceable; e. At the point where the rope turned a bend the rope passed through two Tommy Dodd rollers. The Tommy Dodd roller furthest from the entrance (ie the inbye Tommy Dodd roller), which of the two Tommy Dodd rollers bore more of the pressure as it was closer to the bend, had seized entirely and the rope had worn a flat groove in the metal roller. As at the date of the accident the company had available a spare Tommy Dodd roller at the Wyee mine site that could have been used to replace the seized roller; f. A number of wooded and steel sleepers that supported the rail track had been cut in half by the rope rubbing against them; g. At various points in the drift the sleepers 'pumped' (ie moved up and down when weight was placed on and off them), as a result of damaged sleepers and as a result of water softening their base. This caused loaded flat tops to strike the floor or the side of the drift when passing over those sleepers, causing increased load on the rope as a flat top passed that point; h. At various points in the drift the sleepers had been covered by falling debris such that a flat top would touch the debris, causing increased load on the rope; i. Near the entrance of the drift there was a dam which trapped water that would otherwise flow down the drift and a sump pump (or dewatering pump) was used to pump that water out of the mine. This pump was not working on 6 May 1999. The failure of the pump caused water to travel down the drift. In particular water ran along the groove made by the rope. Water coming into contact with the rope contributed to the corrosion of the rope. It also contributed to the removal of lubricant, both from the rope and from the rollers. j. Individual broken wires throughout the drift, laying on the ground; k. Broken wires evident in drift rope; l. Corrosion on rope; m. Loosening of wires in the strands of the rope; n. Lack of rope lubrication evidence; o. Rope support rollers missing; p. Insufficient rope rollers to prevent the rope from rubbing on the ground, timber and steel sleepers; q. Some rope rollers jammed and not operational; r. Tommy Dodd roller at Fassifern Seam turn was seized and had a flat worn on it by the rope; s. The drift floor was wet and slippery in places; t. Sleepers had been "pumping" in several locations due to the water make in the drift; u. The drift dewatering sump pump was not operational, contributing to the water problems in the drift; v. There was evidence of flat top trolleys dragging on the floor and sides of the drift; w. There was evidence that some steel roof support sets in the drift had been contacted by loads hauled in the drift some time previously; x. Some rib spall had deformed steel mesh in some places, so reducing clearance in the drift; and y. Several steel sleepers had been worn through by the rope. 4. The condition of the rail track support was such that it caused the deterioration of the rope. Relevant Principles 9 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s15(1) of the Occupational Health and Safety Act 1983 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 10 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing Court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at[32]). 11 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 12 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risks to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. Of relevance particularly is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the Court is to take into account in any sentencing hearing. Section 21A states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, . . . (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, . . . (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . 13 In a consideration of penalty, the court must consider the objective seriousness of the offence or, as has been said, the nature and quality of the offence. The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . . Consideration 14 From the agreed facts, on 6 May 1999, the steel drift haulage rope which was attached to a large winch at the surface of the mine snapped with a dolly car and flat top attached to it. The dolly car was bringing employees to the surface. The drop down the shaft was deep. The dolly car and flat top travelled down 175 metres before they crashed against the drift wall and were derailed, colliding with the septum rock on the corner of a Y junction. The dolly car and flat top continued to travel along one of the junction tracks before it came to rest. Four employees were in the dolly car. Three managed to evacuate themselves but the driver was still inside on impact. The driver suffered a laceration to his head and was sent to hospital for a precautionary examination. He was discharged later that morning. 15 The particulars of the charge restrict the pleadings to the failure of the defendant to maintain and/or replace the steel drift haulage rope which was in a defective condition. 16 The facts reveal the defendant knew the rope was defective. It was a steel rope and on the relevant date it was frayed and strained. The decision to replace it, notwithstanding the defendant's knowledge of its state, had not been made. 17 Through daily inspections at the site by the deputies at the end of each mining shift in the period from March 1998 until April 1999, there were reports of defects in respect to the rope. The same reports recorded the problems with various aspects of the haulage system, in particular the need to replace rollers. It was revealed the rope was catching on rollers and on the mine floor. 18 I am persuaded there was an element of foreseeability to this offence. The reports of the engineers reveal knowledge was held by the defendant as to the state of the steel rope which was an integral part of the mine haulage system. Communication between the defendant and the supplier also reveal the recorded knowledge. There was discussion between the defendant and the supplier as to the level of strain the rope could carry. 19 The defendant's management recognised that excessive and unexpected wear of the rope required an appropriate response and had substantially limited the load permitted to be carried by the haulage system. A wire rope of this kind while always exposed to wear and tear had not snapped before. The defendant in limiting the weight of the loads had believed this response was adequate pending replacement of the rope after a maintenance upgrade in the drift. However, the defendant appears to have consistently delayed the timetable for this upgrade. The delay seems to have been connected to a recognition by the defendant that it was necessary to address the cause of the wear and tear to the rope, namely, the cleaning of the drift and the cleaning of the rope rollers. 20 There was therefore a failure to maintain and/or replace the rope which exposed the named employees to a risk of injury which risk became a reality on 6 May 1999. 21 I am satisfied the state of the steel rope was causative of the breach. Given the failure to adequately deal with a recognised risk, this was a serious breach of the defendant's obligation to provide a safe system of work. 22 In a consideration of penalty, elements of both specific and general deterrence should be considered. The Full Bench dealt with issues of general and specific deterrence in Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 at [71]–[80]. In particular, the court noted: [76] . . . The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. . . . [77] In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender… or because the offender would not have the opportunity to commit a similar offence in the future .... However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risks to the safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur by commission or omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. . . . 23 An element of general deterrence in the sentencing process is, in the present case, of particular relevance in order to signal to operators of underground mines the importance of ensuring the soundness of plant used in mines, particularly plant used to convey employees and materials down and up underground shafts. 24 As to an element of specific deterrence, the defendant relies on evidence led by Mr Andrew Myors, General Manager Mining and Technical Services for Centennial Coal Company Limited. Since the incident the defendant's shares have been purchased by Centennial Coal Company Limited and the assets of the defendant (including presumably the Wyee mine assets) have been integrated into Centennial Coal. The defendant asserted therefore it no longer has any 'meaningful assets' and no longer operates any coalmines. Centennial Coal agrees to meet the liability of the defendant as it relates to penalty for this offence. The defendant, however, submitted an element of specific deterrence need play no role in the circumstance as it no longer trades or operates any of its former mines including the Wyee Colliery. In view of Centennial Coal's lack of culpability (being implicated only historically) any assessment referrable to specific deterrence would, the defendant submitted, be misplaced and out of harmony with the purpose for which such a matter is taken into account. 25 The defendant's parent company, however, continues to operate coal mines, including the Wyee Colliery now called the Mannering Colliery. I have considered the defendant's submissions but determine an element of specific deterrence is to be factored into the consideration given the continued operation of Centennial Coal, the defendant's parent company. 26 I am satisfied, however, Centennial Coal has an overriding commitment to safety and has comprehensive safety systems in place. I am also satisfied the defendant, from the evidence, had in place comprehensive safety systems for the proper management of the mine. Senior management of the mine were persons of long experience in the coal-mining industry with proper training and good records. A safety committee met monthly and senior management played a part in decision making. In this circumstance, however, the wrong decision was made when the deficiency was recognised. Limiting the weight carried by the cars did little to alleviate the identified risk to safety. 27 The importance of maximum available sentences was confirmed in Markarian at [30] and [31]. The maximum penalty at the date of the incident for a corporate offender who had not committed a prior offence under the Act is $550,000. The maximum penalty for a corporate offender who had committed a prior offence is $825,000 (s51A of the Act). This raises a need for a consideration as to the industrial record of the defendant. The defendant had three prior convictions: one recorded on 18 November 2002 for an offence on 1 July 1999; two convictions recorded on 7 March 2005 in respect of offences arising in the periods of 23 September 1993 to 17 July 1998 and December 1996 to 17 July 1998. The offence in this matter occurred on 6 May 1999, at a time when the defendant had not been convicted of those offences. 28 In Morrison v Powercoal Pty Limited (No 3) (2005) 147 IR 117, the Full Bench considered whether the defendant had a prior conviction within the meaning of s51A of the Act. The offences with which the Court was there concerned had occurred before July 1998 but convictions had not been entered until March 2005. By 2005, the defendant had been convicted on 18 November 2002 in respect of the offence committed on 1 July 1999 (Morrison v Powercoal Pty Ltd [2000] NSWIRComm 298. The Full Bench held that where the offences they were considering had been committed prior to the date of the offence, the subject of the earlier conviction, the defendant was not to be treated as having a prior conviction within the meaning of s 51A of the Act. In the course of their judgment, their Honours quoted with approval from The Laws of Australia, Title 12 Criminal Sentencing, Subtitle 3 Interpretation of Penalty Provisions, Chapter Four, Second Offences or Convictions (Law Book Company, 1993): Where a penalty provision has an increased penalty for a second or subsequent offence, it only applies if there has been a conviction for the first offence before commission of the subsequent offence. In that regard the Full Bench in Powercoal (No 3) held: 54 The Court of Criminal Appeal considered the approach to be taken in sentencing as to conduct of a defendant subsequent to a guilty finding in R v Boney (unreported, NSW Court of Criminal Appeal, NSW, 60342 of 1991, Grove J, Mahoney JA and Newman, 22 July 1991), where Grove J, with whom Mahoney JA and Newman J agreed, stated at 4: His Honour observed that the applicant, who appeared for sentence in 1991, had been before courts in the period since the offences which occurred in 1987. His Honour noted these (which I shall describe as interim) and observed that other persons with whom he had to deal for offences arising out of the Brewarrina incident were in similar situations and commented: What I have already said applies particularly to him as to his conduct since this event. The approach to be taken to such interim conduct between an offence for which a person stands for punishment and its time of commission has been the subject of authoritative approach from long ago. In The King v Withers (1789) 3 TR 428 Kenyon LCJ said: "It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant." The same approach was manifested in this Court in R v Hutchins (1957) 75 WN (NSW) page 75 where Street CJ said: I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954 his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates and he was entitled to take them into account for the purpose of considering whether he should reduce what he would have otherwise regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth. His Honour went on to describe the circumstances in which that claim to leniency may be forfeited by reason of interim offences. It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence. 29 Both parties submitted the present case is distinguishable from that before their Honours in Powercoal (No. 3) in that this offence did not predate two of the offences of which the defendant now stands convicted. Nonetheless, both parties submitted the reasoning encompasses the present circumstances. No convictions had been recorded at the date of the offence admitted by the plea in the present case. I accept on the authority of Powercoal (No. 3) (at [23], [49], [50] and [55]) that it is the date of conviction rather than the date of an earlier offence which is of relevance for the operation of s51A of the Act. 30 In the circumstances I am satisfied the charge attracts a maximum penalty of $550,000 under s51A of the Act. 31 The prosecutor submitted that the history of the proceedings in this case is not relevantly different from the history of proceedings considered in Ridge Consolidated Pty Limited v WorkCover Authority of NSW (Inspector Mauger) (2002) 115 IR 78. Accordingly, the Prosecutor submitted the Court would find that notwithstanding the lengthy period since the charge was laid, as the plea was entered immediately following the crystallisation and resolution of the issues surrounding the Court's jurisdiction, it is appropriate to consider the plea as one entered at the first reasonable opportunity (see R v Sharma (2002) 54 NSWLR 300). A plea of guilty was entered on 21 July 2005 immediately upon the filing of the Amended Application for Order. The Amended Application for Order fundamentally recast the focus of the charge from the failure to provide appropriate training and instruction to the present allegation of a failure to properly maintain the haulage rope. 32 The range of discount for an early plea of guilty in similar matters is in the 10–25 percent range. The upper end of that range is usually reserved for cases where the plea was entered at the earliest reasonable opportunity. As to when a plea will be considered to have been entered at the earliest reasonable opportunity it is an objective assessment. The Court of Criminal Appeal in R v SY & Anor [2003] NSWCCA 291 stated: 86 It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis. Nor is it the case that the same discount applies to all the offences for which the offender is to be sentenced and a proper exercise of discretion requires the judge to discriminate between the offences if it is necessary to do so in order to properly reflect the value of the pleas by the discount given. In R v Dib [2003] NSWCCA 117, the Court of Criminal Appeal stated: 4 However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v Sharma (2002) 54 NSWLR 300, distinguishing Cameron v The Queen (2002) 76 ALJR 382. 5 If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. 6 This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability. 7 I think the sentencing judge may also have been in error in referring to the strength of the Crown case. That can be relevant to the question of whether a plea of guilty is indicative of remorse or otherwise mitigating of culpability, but it is not relevant to the discount to be given by reason of the advantages actually flowing to the administration of justice. In WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Ltd ( 2002) 121 IR 1, Walton J, Vice President, in applying the above reasoning stated: 73 . . . (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. . . . 74 . . . (5) The amended application in Matter No IRC3954 of 2000 resulted in a reasonably substantial reduction in the particulars of the charge in that matter — the particulars being altered from a failure to safely use and store the phostoxin to a failure to safely store that substance. 75 Having regard to the history of the matter, the defendant should be given a moderate discount for the plea of guilty in Matter No IRC3954 of 2000 (when the utilitarian aspects are assessed with other relevant factors referred to in R v Thomson ). The defendant should receive a discount at the top of the range for its plea of guilty (and other relevant factors referred to in R v Thomson ) for the remaining charges. . . . 33 I am satisfied in this particular circumstance the plea of guilty and its timing significantly saves the court's time; it has significant practical advantage and the delay was not the defendant's fault. I accept the plea was entered at the first reasonable opportunity and therefore has a utilitarian value that should attract a 25 percent discount in accordance with the principles enunciated in Thomson. 34 The defendant took steps to improve workplace safety immediately after the incident. These steps were taken not just at the Wyee Colliery but at its other mines to prevent any further incident. In 2000, Sinclair Knight Merz, consultant experts in winder designs, operations and maintenance, were engaged to audit all the defendant's winders, from which a list of management and equipment improvements were identified and acted upon. In 2001, Sinclair Knight Merz were engaged to perform a follow up audit to monitor improvements and in 2003/2004 they were again engaged to perform audits of the defendant's former mines and to perform initial audits to Centennial Coal's other mines that operate winders. There is review and improvements to the Corporate Health and Safety Risk Management Strategy Policy and safety management plans and systems are developed at each mine under the appropriate Australian Standards and implemented; development and the implementation of a Corporate Health and Safety Consultation Policy commenced on 15 October 2004. In 2005, all of Centennial Coal's employees had the opportunity to raise safety issues, which issues were addressed and reform is being incorporated into a new safety management plan. There was the introduction of C-Net an electronic network and database of information, which allows all computer users access to all safety management systems and any alerts to be posted across all sites. Managers are encouraged to be participants in the Mine Managers Association of Australia's Continuing Professional Development Scheme. There has been devised positive performance indicators to measure the effectiveness of systems designed to prevent accidents and the appointment of Mr Bruce Dowset, a full time internal safety auditor. The occupational health and safety budget increased over the years. 35 I accept the defendant co-operated with the investigation. 36 The defendant has three prior convictions. While they do not have the effect of increasing the maximum penalty, when evaluating the defendant's assertions of good corporate conduct, the three prior convictions do have some significance. The two convictions relating to the periods 23 September 1993 to 17 July 1998 and December 1996 to 17 July 1998 followed the collapse of a roof at Awaba Colliery occasioning fatal injuries to a miner. The relevant risk to health and safety was a failure to provide or maintain an adequate system for assessing the safety of the roof and a failure to implement an adequate system of recording and notifying employees of roof problems and roof history. The third offence occurred on 1 July 1999 at an underground coal mine near Dora Creek known as the Cooranbong Colliery. An employee while setting up a Continuous Mining Machine climbed between the underside of the conveyor boom and the stabiliser jack. When on his instructions another employee started the machine he suffered fatal injuries. The defendant was found guilty of failing to provide such information, instruction, training and supervision as was necessary to persons carrying out the installation of conveyor booms onto the Continuous Mining Machine to ensure the health, safety and welfare of its employees. They were significant incidents demonstrating system concerns. 37 I am satisfied to the defendant's previous good conduct and its past commitment to occupational health and safety standards has been marred by those recorded convictions. 38 The defendant commented, given it no longer trades, any purported expression of regret in its name could be hollow. However, Centennial Coal having assumed responsibility for the penalty assured the Court of its regret that the incident occurred at all, specifically in the context of its commitment to address all underlying causes of the incident at all its mines. 39 A penalty must be fixed which reflects the matter was a serious breach of the Act but not a worst case. The defendant is entitled to a full discount of 25 percent for its early plea. The defendant is credited for its co-operation with the prosecutor in the very particular circumstance of this prosecution. The plea has significant value in the circumstance and the acceptance, on behalf of the defendant by Centennial Coal, of the responsibility, accompanied as it was by its genuine expression of regret is taken into account. Nonetheless, objectively this was a serious offence. 40 I find the defendant guilty. 41 The defendant is fined in the sum of $160,000.00. Orders Accordingly the Court makes the following orders: 1. In Matter No IRC3076 of 2001, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $160,000 with a moiety to the prosecutor. 3. By consent, the only order sought as to costs is that each party pay their own costs. I so order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.