Industrial Court of New South Wales CITATION: Morrison v Milner and Baldwin (No 2) [2009] NSWIRComm 191 Rodney Dale Morrison (Appellant) PARTIES: John Hamilton Milner (Respondent in Matter No IRC 2008/574) Stephen Barry Baldwin (Respondent in Matter No IRC 2008/575) FILE NUMBER(S): IRC 574 and 575 of 2008 CORAM: Boland J President; Kavanagh J; Backman J APPEAL - Occupational health and safety - Underground coalmining industry - Prosecution of corporate defendant, mine manager and director - Roof fall - One miner killed and another seriously injured - Not guilty verdicts at first instance, charges dismissed - Appeal by prosecutor - Whether errors by the primary judge in relation to assumptions made and inferences drawn; safe work procedure; existence of risk; risk assessment; information, instruction, qualifications and training of mining crew - Whether crew left to its own devices - Longwall mining - Cut and flit mining - Development mining - Partial pillar extraction mining - Goaf - Recovery of continuous mining machine from under unsupported roof - Roof bolting - Fletcher bolter - Timber props - Toolbox talks - Sounding a roof and barring down - Leave to appeal granted - Appeal dismissed. CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - Appeal - Underground coalmining industry - Prosecution of corporate defendant, mine manager and director - Roof fall - One miner killed and another seriously injured - Not guilty verdicts at first instance, charges dismissed - Appeal by prosecutor - Whether errors by the primary judge in relation to assumptions made and inferences drawn; safe work procedure; existence of risk; risk assessment; information, instruction, qualifications and training of mining crew - Whether crew left to its own devices - Longwall mining - Cut and flit mining - Development mining - Partial pillar extraction mining - Goaf - Recovery of continuous mining machine from under unsupported roof - Roof bolting - Fletcher bolter - Timber props - Toolbox talks - Sounding a roof and barring down - Leave to appeal granted - Appeal dismissed. LEGISLATION CITED: Occupational Health and Safety Act 1983 Cullen v State Rail Authority of NSW (1989) 31 IR 207 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57 Inspector Kilpatrick v Jae My Pty Limited [2004] NSWIRComm 109; (2004) 136 IR 148 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84 CASES CITED: Newcastle Wallsend Coal Company Pty Ltd v Stephen Finlay McMartin [2006] NSWIRComm 339; (2006) 159 IR 121 R v Hien Puoc Tang (2006) 65 NSWLR 681; (2006) 161 A Crim R 377; [2006] NSWCCA 167 R v Jung [2006] NSWSC 658 Rodney Dale Morrison v John Hamilton Milner and Rodney Dale Morrison v Stephen Barry Baldwin. Prosecutions under s 15(1) of the OH&S 1983 by virtue of s 50 of the OH&S Act 1983 [2008] NSWIRComm 77 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2002) 123 IR 121 HEARING DATES: 28/09/09-30/09/09; 1/10/09; 7/10/09 DATE OF JUDGMENT: 20 November 2009 Mr R J Burbidge QC with Mr J A Kernick of counsel (Appellant) Crown Solicitor LEGAL REPRESENTATIVES: Mr G M Watson SC (Respondent in Matter No IRC 2008/574) Colin Biggers & Paisley, Lawyers Mr B G Docking of counsel (Respondent in Matter No IRC 2008/575) Bartier Perry, Solicitors JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President KAVANAGH J BACKMAN J Friday 20 November 2009 Matter No IRC 574 of 2008 RODNEY DALE MORRISON v JOHN HAMILTON MILNER Application by Rodney Dale Morrison to appeal against a judgment of Justice Haylen given on 14 April 2008 in Rodney Dale Morrison v John Hamilton Milner and Rodney Dale Morrison v Stephen Barry Baldwin. Prosecutions under s 15(1) of the OH&S 1983 by virtue of s 50 of the OH&S Act 1983 [2008] NSWIRComm 77 Matter No IRC 575 of 2008 RODNEY DALE MORRISON v STEPHEN BARRY BALDWIN Application by Rodney Dale Morrison to appeal against a judgment of Justice Haylen given on 14 April 2008 in Rodney Dale Morrison v John Hamilton Milner and Rodney Dale Morrison v Stephen Barry Baldwin. Prosecutions under s 15(1) of the OH&S 1983 by virtue of s 50 of the OH&S Act 1983 [2008] NSWIRComm 77 JUDGMENT OF THE COURT [2009] NSWIRComm 191 1 These proceedings concern appeals by Rodney Dale Morrison ('the appellant') against a judgment given by the primary judge, Justice Haylen, in Rodney Dale Morrison v John Hamilton Milner and Rodney Dale Morrison v Stephen Barry Baldwin. Prosecutions under s 15(1) of the OH&S 1983 by virtue of s 50 of the OH&S Act 1983 [2008] NSWIRComm 77. 2 The judgment at first instance concerned an incident that occurred on 20 December 2000 at the Bellambi West Colliery situated at Picton Road, Wilton near Bulli on the South Coast of New South Wales. The Colliery was operated by Allied Coal Pty Ltd. Mr Milner was employed by Allied Coal as Mine Manager at the mine and Mr Baldwin was a director of the company and described as its managing director. As Haylen J explained: [4] On the evening of 20 December 2000, a crew was working on the 519 Panel of the mine. This crew comprised Mr Gregory Aspinall, Mr Justin Rowles, Mr James McAlary, Mr Robert Monk, Mr Gavin Pearce, Mr Thomas Fraser and Mr Richard Zgorzeleski. At approximately 9.00 pm on their shift, the remotely controlled continuous miner became immobilised under unsupported roof in 519 Panel being some 15 metres out from supported roof. Members of the crew began to take action to retrieve or "rescue" the immobilised continuous miner by creating a passage to the miner by installing two rows of timber props to support the roof and to allow access to the miner. Wooden props were obtained and the first one or two props were cut to an appropriate size. Mr Aspinall and Mr Rowles became engaged in the task of positioning the first timber prop approximately half a metre into the goaf and just beyond the last line of roof bolting. In the course of setting the first prop against the roof, a section of the roof detached and fell substantially covering Mr Aspinall and Mr Rowles with rock. Mr Aspinall suffered fatal injuries in this accident and Mr Rowles was severely injured and remained in a coma until January 2001. 3 In February 2006, following a Coronial Inquiry, Mr Morrison, the Director of Mine and Forest Safety Performance, New South Wales Department of Primary Industries and an Inspector appointed under s 47A of the Occupational Health and Safety Act 1983 ('the OHS Act'), commenced proceedings against Mr Milner and Mr Baldwin alleging a breach of s 15(1) of the OHS Act by Allied Coal and by virtue of that breach Mr Milner, being a person concerned with the management of the company and Mr Baldwin being a director of the company, by operation of s 50 of the OHS Act, were deemed to have contravened the same provision. 4 As his Honour observed, in each case, the charge was framed in the following way: The company did FAIL to ensure the health, safety and welfare at work of all the company's employees, in particular, Gregory Aspinall, Justin Rowles, James McAlary, Robert Monk, Gavin Pearce, Thomas Fraser and Richard Zgorzelski, contrary to s 15(1) of the Occupational Health and Safety Act, 1983 in that the company failed to provide and maintain systems of work that were safe and without risks to health and failed to provide information, instructions and training that was necessary to ensure the health and safety at work of its employees Particulars of the charge: (a)... (b) The company is a corporation having its registered office at B & W Pty Ltd, 497 Princes Highway, Fairy Meadow in the State of New South Wales. The company was placed under external administration on 31 January 2002 but was not under external administration at any time material to the commission of the offence alleged; (c) On 1 December 2000 at Bellambi West Colliery ("the mine"), the company, being an employer, did contravene s 15(1) of the Occupational Health and Safety Act 1983; (d) The defendant, being a person concerned in the management of the company is deemed to have contravened s 15(1) of the Occupational Health and Safety Act 1983 by virtue of s 50 of the said Act; (e) The company at all material times operated the mine and was in control of the places of work contained therein; (f) The company at all material times was engaged in pillar extraction coal mining operations at the mine; (g) The company at all material times employed a number of personnel, including Gregory Aspinall deceased, Justin Rowles, James McAlary, Robert Monk, Gavin Pearce, Thomas Fraser and Richard Zgorzelski at the Bellambi West Colliery; (h) As at 20 December 2000 the said personnel were employed as the afternoon shift production crew for the 519 Panel of the mine; (i) During the afternoon shift of 20 December 2000 at the mine at around 9 pm a remotely controlled continuous miner became immobilised under unsupported roof in 519 Panel; (j) As at December 2000 the company had no written or other adequate Safe Work Procedure or instructions in place for the recovery of an immobilised continuous miner from under unsupported roof appropriate to the pillar extraction coal mining operations being undertaken at the mine; (k) The company failed to provide or maintain systems of work that were safe and without risk to health and failed to provide such information, instruction and training as was necessary to ensure the health and safety of its employees in that it: (i) Failed to undertake an assessment of the risks associated with the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations; (ii) Failed to establish a Safe Work Procedure for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations; (iii) Failed in the context of pillar extraction coal mining operations to provide any, or any adequate, information and instruction to its employees for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations; and (iv) Permitted employees without appropriate seniority and qualifications on 20 December 2000 to determine the methodology for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. (l) As a result of the company's failure the said Gregory Aspinall was placed at risk of injury and suffered fatal injuries, the said Justin Rowles was placed at risk of injury and suffered serious injuries, and the said James McAlary, Robert Monk, Gavin Pearce, Thomas Fraser and Richard Zgorzelski were placed at risk of injury. 5 The primary judge further noted: [7] Both defendants entered pleas of not guilty to the charges particularised and at the hearing, the prosecutor made it clear that the essence of the charge were those matters set out in paragraph (k). The company was placed under external administration in January 2002 but was not under external administration at the time of the commission of the alleged offence. 6 Following a lengthy trial, Haylen J found that the appellant had not been able to establish a breach of s 15 of the OHS Act by Allied Coal. His Honour found that there had been a failure to establish a causal connection between the alleged acts or omissions of the company and the particularised risks to safety ([287]). It, therefore, followed that by operation of s 50 of the OHS Act neither Mr Milner nor Mr Baldwin were guilty of a breach of the OHS Act. The proceedings against Mr Milner and against Mr Baldwin were dismissed. The appellant was ordered to pay the costs of the respondents. LEAVE TO APPEAL 7 The respondents opposed leave being granted to appeal. We do not propose to canvass the arguments for and against leave being granted. We intend to grant leave. The appeal raises a number of issues that are important and it is in the public interest that they be dealt with. In particular, the appeal raises the question of a mining corporation's liability in relation to allegations that the corporation failed to ensure the safety of employees by failing to undertake an assessment of the risks associated with the recovery of an immobilised continuous miner ('CM') from under unsupported roof in pillar extraction coal mining operations; failing to establish a Safe Work Procedure ('SWP'); failing to provide any, or any adequate, information and instruction to its employees; and permitting employees without appropriate seniority and qualifications to determine the methodology for the recovery of an immobilised CM. 8 The appeal involves complex questions, in the context of coal mining operations, relating to the form and content of risk assessments, risks to health and safety arising from goaf falls and the capability of miners and mine deputies to deal with dangerous situations. The consideration of these matters are of vital interest and importance to the underground coal mining industry. TYPES OF MINING 9 It is helpful to understand from the outset the nature of the mining carried out by Allied Coal at Bellambi. This was generally described by Haylen J at [2]-[3] of his judgment: [2] At this time, the company was engaged in pillar extraction coal mining operations. That operation involved the use of a remotely controlled continuous miner described as a substantial machine utilised to mine coal or rock. The use of the continuous miner in this mining process resulted in areas of roof that required support to make it safe. Under this method of operation the crew were to be positioned beneath the supported roof. [3] Prior to December 2000, mining had proceeded using both the longwall and pillar system of extraction. Under this system there was mining out of the roads that formed the grid pattern within which the major extractions of coal were to be taken. In the previous months, significant mining had taken place under this system in 517 and 519 Panels of the mine. Exploratory drilling in 519 Panel identified a geological fault resulting in a curtailing of the area which had been contemplated for longwall mining and also resulting in a decision to seek approval to extract the coal in that panel by a different system known as partial pillar extraction. This system involved the total removal of selected panels. An application to adopt this system was made by the company pursuant to the provisions of s 138 of the Coal Mines Regulation Act 1982 and that application was ultimately granted. A major difference between these systems of mining was that under partial pillar extraction a much wider area of unsupported roof was created. The unsupported roofs were deliberately left to collapse and these areas were known as "goaves". No person was to enter this area of goaf unless the area had been made secure. 10 There are significant differences between longwall mining and partial pillar extraction ('PPE') as explained by his Honour. Additionally, both types of mining are preceded by development mining, which is known by the alternative descriptions of 'cut and flit' or 'first workings'. The appellant described that type of mining thus: Development of first workings roadways involves the use of a continuous miner to cut 5 to 5.5 metre drives (or plunges ) for a distance predetermined by geological conditions. Typically, and originally in the present case, that distance was 15 metres from the end of supported roof. When that distance is achieved, the CM [continuous miner] is withdrawn for use elsewhere, and the roof secured by use of a Fletcher Bolter. As the CM is itself approximately 10 metres long, the distance involved in reaching its controls, should it stop under unsupported roof, could be no more than a maximum of about 10 metres from supported roof, within a chamber no wider than 5.5 metres. 11 Longwall mining was also described by the appellant in the following terms: Longwall mining was the method of mining in use at the colliery and was to be employed in Panel 519 until a geological fault was encountered. Longwall mining does not employ the continuous miner after first workings, and no occasion to enter the goaf that it creates arises. Its methodology involves continuous advance through a pillar of coal by the sweep of a cutter head across the entire face of the pillar, commonly 125-150 metres wide, and up to 2km deep. The cutter head is part of a substantial suite of machinery that extends the whole width of the face, and includes a roof-supporting canopy over that width that provides protection for the operating crew. The cutting head, operated from beneath the protection canopy, travels along a substantial track, sweeping up and down as it goes, removing coal to a depth of about a metre in the course of each pass. As the face recedes, the suite advances; the canopy, supported on hydraulic rams, moves forward with it. In consequence of the advance, a void behind the canopy forms. As this area has been mined out and there is no need or intent to secure the roof, it becomes a goaf, that is, a mined out area that is left to collapse. There is no occasion to enter the goaf and no interest in the time it may hang up before it falls. 12 The third type of mining, which was being undertaken on 20 December 2000 at Bellambi, is PPE, described by the appellant as follows: Partial pillar extraction mining involves the use of a CM to lift off successive slices from the pillar of coal to be mined… The CM, remotely operated from secured roadway, removes successive adjacent layers of coal from the pillar, each 'lift' taking it approximately 15 metres into the pillar. The process creates an ever-widening goaf of mined-out void that can, and did in the instant case, run into thousands of square metres. The need to enter the goaf arises should remote controlled plant become unresponsive to remote command. Only then does any need to support a portion of the goaf roof arise. 13 We also note the helpful glossary that is to be found in the first instance judgment following the reasons for judgment. PARTICULARS - FINDINGS AT FIRST INSTANCE 14 Following an extensive exploration of the evidence, Haylen J considered each of the particulars of the charges. The first particular was an allegation that there was a failure to undertake an assessment of the risks associated with the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. 15 As to the first particular his Honour found at [259]: [T]he Court cannot be satisfied beyond reasonable doubt that the company failed to undertake an assessment of the risks associated with the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. The prosecution has therefore failed to establish the first essential particular. 16 The second particular alleged that there was a failure to establish a SWP for the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. His Honour found at [272]: [T]he Court is satisfied that there was a SWP that met industry and safety standards for the recovery of a stranded continuous miner under unsupported roof and that procedure had been reinforced with the crews from the middle of 2000 until just before partial pillar extraction mining commenced. The procedure was detailed, as earlier discussed. Importantly, it was emphasised that every situation would be different: that is why it was impractical to issue a fully documented SWP. This is one of the circumstances, recognised as happening from time to time in pillar extractions, where the absence of a documented process did not mean that there was an absence of a safe work procedure and that it was not reinforced with the mining crews. For those reasons, the prosecutor's second essential particular is not established. 17 The third particular alleged that the company failed in the context of pillar extraction coal mining operations to provide training, or any adequate training, information and instruction to its employees for the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. Haylen J noted (at [275]) that: [T]his particular revolves around the allegation based upon Professor Galvin's evidence that the work had not been the subject of a proper risk assessment and that a relevant safe working procedure had not been developed so that the panel crew were unguided and left to their own devices and planning and they were not trained or competent with the decision-making involved but adopted a procedure devised for a significantly different mining environment. The primary judge found the third particular was not made out ([281]). 18 The fourth particular alleged that, on 20 December 2000, the company permitted employees without appropriate seniority and qualifications to determine the methodology for the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. Haylen J found (at [283]) that there was: [N]o evidence to support a finding that the men were lacking in qualification or seniority to undertake this task. There is no analysis of their actual training to identify omissions nor is there any analysis of the training of the Under-manager as to why that person was more appropriate and better qualified to make the decision as to how to support the roof in a rescue exercise, and to make that decision to the exclusion of the Deputy or the crew. The fourth particular was not made out ([286]). APPEAL GROUNDS 19 There were 53 grounds of appeal in each appeal (ground 7 was not pressed), a matter of some complaint by the respondents because of what was said to be their 'suffocating multiplicity' and a failure on the part of the appellant to relate his arguments on the appeal to the grounds of appeal. 20 There was a very large amount of material tendered at first instance and consequently on the appeals. The appeals raised a large number of issues, hence the multiplicity of grounds. The appeal grounds are annexed to this decision. 21 Mr R J Burbidge QC with Mr J A Kernick of counsel for the appellant, in their oral submissions, helpfully compartmentalised the grounds of appeal into four broad categories. We must comment that without this categorisation we would have found it very difficult to deal with the appeal in a coherent manner. There was no structure to the grounds; some of the grounds were sub-grounds to more significant issues raised by other grounds and even with the helpful categorisation undertaken by the appellant's counsel, we found issues were duplicated. 22 We turn to the four categories. Category A concerned what the appellant contended were errors in assumptions made and inferences drawn by the primary judge. This Category was broken down into three subcategories: 1. the implications of the trial judge's incorrect assumption and/or the inference he drew regarding the comparability of risks posed by longwall mining and PPE mining (grounds 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 46); 2. his Honour's incorrect perception that it was common ground that the rescue of a buried CM was more dangerous than rescue of a stranded CM (grounds 4 and 5); 3. his Honour's incorrect understanding that an expert opinion that was proffered by a witness was instead an assumption the expert had been asked to make (grounds 32, 33 and 34). 23 Category B was described by the appellant as the 'safe work procedure' grounds. These included grounds 1, 2, 3, 21, 22, 23, 24, 25, 27, 28, 29, 30, 41, 42 and 50. For example, ground 27 was that: His Honour erred in finding that the written direction in relation to cut and flit mining as amended orally and with the use of a whiteboard represented a safe work procedure for the recovery of an immobilised continuous miner in conditions of partial pillar extraction mining. 24 Category C was referred to as the 'absence of evidence' grounds. This included grounds 39, 40 and 47 (no evidence of risk of goaf fall) and grounds 53 and 54 (no evidence that crew lacked qualification to determine Continuous Miner rescue methodology). For example, grounds 39 and 53 pleaded: His Honour erred in finding that there was no evidence of a risk of a goaf fall. … His Honour in using the term "task" to mean determining the methodology to be used to recover a continuous miner misdirected himself in holding that there was no evidence to support a finding that the men in the afternoon shift crew lacked qualification and seniority to undertake that task; Prof Galvin having given evidence of that matter. 25 Category D was referred to as 'findings' and included: ground 6 (his Honour's findings that relevant instruction for rescuing a Continuous Miner existed); grounds 18, 19 and 20 (the assumption as to the Mine Deputy's competence); grounds 26, 35, 37, 43, 44 and 45 (the prosecutor's four particulars were not made out); ground 31 (the crew was entitled to rely on Cut and Flit methodology in Partial Pillar Extraction conditions); ground 36 (the Fletcher bolter was not shown to have been available); ground 38 (analysis of individual qualifications was necessary); ground 48 (employer's measures constituted a risk assessment); ground 49 (miners can predict goaf falls); grounds 51 and 52 (incorrect interpretation of evidence that was given by certain witnesses). CATEGORY A APPEAL GROUNDS Subcategory 1 26 The first subcategory of Category A concerned what the appellant contended was the trial judge's misunderstanding or misconception about the differences between PPE and longwall mining and that this had infected a large part of the judge's consideration. The misconception was said to be that development mining and longwall mining created goaves comparable to the goaf created by PPE mining. In consequence, it was submitted, his Honour reasoned that the absence of evidence of failure to appreciate risks associated with goaf widths under development mining and longwall mining and the absence of evidence that the company was ill-equipped to address recovery of the CM in conditions of development and longwall mining, presented him with the task of determining whether a risk assessment and a step-by-step method should have been devised for recovery of a CM from under any unsupported roof. 27 The relevant part of the primary judgment was at [247]-[250] and, in particular, [249]: [247] A significant part of the prosecution case was the fact that there had been a history of roof falls of a relatively minor nature compared with an entire goaf fall but, nevertheless, presenting a risk to safety. Professor Galvin stated that, given the history of these falls, it was foreseeable that, when rescuing an isolated miner from under unsupported roof, one of the risks to be considered and taken into account and a risk that was clearly foreseeable was that there could be a roof fall. In those circumstances the usual procedure was to closely inspect the roof, sound it and bar it down as necessary. The other factor was that it was well known at this Mine and in the mining industry that continuous miners became stranded and required to be "rescued". Again, Professor Galvin was of the view that it was clearly foreseeable that the mine operator would have to rescue a continuous miner when the operation altered from cut and flit to partial pillar extraction in Panel 519. In addition, the consultants advising the company in relation to its s 138 Application had provided a risk assessment of risks generic to partial pillar extraction and had identified the need to recover a buried continuous miner. It was common ground that the rescue of a buried miner under unsupported roof was a more dangerous task than the retrieval of a stranded miner from under unsupported roof. [248] Accepting all these matters does not necessarily advance the prosecution case regarding any culpable acts or omissions by the company. There is nothing in the evidence that suggests that the company and/or its employees, including the crew working on the 519 Panel, were unaware of the frequency of roof falls in the area of that Panel or were unaware that the continuous miner might become isolated under unsupported roof. There is nothing in the evidence to suggest that the crew and in particular Mr Aspinall and Mr Rowles, went about the task of rescuing the continuous miner in ignorance of the condition of the roof or otherwise being uninformed about the possibility of having to rescue the continuous miner. Both those factors were relevant to the type of risk assessment that had to be undertaken and the method adopted to rescue the continuous miner. The evidence shows that Mr Milner and the mine employees were well aware of the possibility of small areas of a roof falling and that support had to be given to a roof when rescuing a continuous miner from under unsupported roof, no matter what type of mining operation was involved, including partial pillar extraction mining. The method adopted by Mr Milner and passed on to the men nominated the use of the Fletcher bolter, hand held bolters or timber props or any combination of them in order to support the roof so that a crew engaged in the rescue exercise would not be exposed to the risk of part of the roof falling in on them while undertaking the rescue. The issue then appears to involve a consideration of whether a more detailed and written method of rescue should have been established by the company and that also involves a consideration of what should constitute those detailed steps to ensure the safety of the miners when engaged in a rescue exercise under unsupported roof. [249] In considering these issues, it is to be remembered that a critical part of the prosecution case was that when the company moved to partial pillar extraction, the mining crews were exposed to greater danger because the width of the goaf was substantially increased (from 75 sqm to over 2000 sqm). While the generality of that proposition might be accepted, there is evidence from Dr Hebblewhite and Dr Shepherd that, even in the previous form of mining, voids of up to 150 metres had been encountered (e.g. LW 518), with the company having to deal with geological stresses brought about by such a width: the suggestion was that a 150m total void width would also occur under the proposed pillar extraction method . Although there is no detailed evidence of it, it seems likely that in a general sense, under the previous method of mining, much smaller goaf areas were encountered and that under the partial pillar extraction method much wider goaf areas would be encountered but acceptance of that generality does not detract from the fact that, even under its previous method of operation, the company had to address the safety of the operation including the recovery of a stranded miner, albeit in smaller areas of goaf. There is no evidence to suggest that the company failed to appreciate the risks associated with goaf widths under its previous mining systems and how they might change under the new method or that, in some respect or another, it failed to fully appreciate those risks and ensure the safety of the men. Undoubtedly, differences in design would be of significance in taking measures to address the risk to employees presented by that width of goaf under the previous systems of mining. There is nothing, however, in the evidence to suggest that the company was ill equipped or omitted to take some step to address those circumstances under the previous method of operation. The prosecutor's case, however, proceeds on deficiencies in the system once pillar extraction mining commenced on 1 December 2000. [250] The difference that emerged in the evidence as to an appropriate procedure for partial pillar extraction was Professor Galvin's view that a detailed, almost step-by-step, method had to be provided to a crew faced with the task of rescuing a stranded continuous miner from under unsupported roof. ... 28 In development, or cut and flit operations, the size of the goaf is commonly of the order of 75 sq m (5m x 15m), which is the area of the plunge made by the CM and which is surrounded by three solid walls. After the CM is withdrawn the roof is bolted. It may be (and it did occur at Bellambi) that a CM will become stranded in the goaf prior to the roof being bolted because of a mechanical or electrical fault and it becomes necessary to retrieve it. But the area of unsupported roof, i.e., the goaf, into which miners may be required to enter, is significantly smaller than the potential area of unsupported roof in PPE mining. 29 In longwall mining there is a swathe cut through the coal about 150 m wide and up to 2 km deep creating an enormous goaf in which the unsupported roof is expected to collapse, but into which no person is expected to venture because there is no need to. Moreover, CMs are not used in longwall mining so no issue of retrieval arises. 30 In the PPE mining that was being carried out on 20 December 2000, the goaf created was estimated to be about 2000 sq m - a much larger area into which miners might be required to go to retrieve a stranded CM than what would be encountered in development mining. 31 No proper comparison can be made between PPE mining and longwall mining in the context of undertaking risk assessments in connection with the retrieval of CMs because: (a) CMs are not used in longwall mining so no occasion arises to retrieve a stranded CM; and (b) no occasion arises, in any event, for a miner to enter an area of unprotected roof in longwall mining. 32 In his judgment at [249] Haylen J noted that '…in the previous form of mining, voids of up to 150 metres had been encountered (e.g. LW 518), with the company having to deal with geological stresses brought about by such a width'. The previous form of mining at Bellambi was longwall and it is that type of mining his Honour appears to have been addressing by his reference to 'previous form of mining', 'voids of up to 150 metres' and 'LW 518'. However, the only relevant geological stresses the company had to deal with in longwall mining related to dam safety (the mining was occurring close to the Cataract Dam) and that was not in the context of any consideration of the risk associated with entering an area of unsupported roof. 33 The appellant's complaint, therefore, was that contrary to his Honour's finding of fact in [249], the company did not have to 'address the safety of the operation including the recovery of a stranded miner, albeit in smaller areas of goaf' in its 'previous method of operation' (i.e., longwall) because no occasion arose in longwall mining to recover a stranded miner. Accordingly, because there was no occasion for the company to consider the risks associated with goaf widths in longwall mining and how that might need to change under PPE mining, it was the appellant's submission that it was not open to Haylen J to find at [249] that: There is no evidence to suggest that the company failed to appreciate the risks associated with goaf widths under its previous mining systems and how they might change under the new method or that, in some respect or another, it failed to fully appreciate those risks and ensure the safety of the men. Undoubtedly, differences in design would be of significance in taking measures to address the risk to employees presented by that width of goaf under the previous systems of mining. There is nothing, however, in the evidence to suggest that the company was ill equipped or omitted to take some step to address those circumstances under the previous method of operation. 34 One of the difficulties, however, about [249] is the ambiguity of the paragraph. It may be that in referring to the previous form of mining the primary judge was meaning to refer to development mining carried out under the previous method of longwall mining in the development mining phase, which would make more sense. That is because development mining was undertaken as a prelude to both longwall and PPE mining and the goaves formed in development mining were of much smaller dimensions than found in PPE mining. This is consistent with part of his Honour's discussion in [249]. For example, his Honour said: In considering these issues, it is to be remembered that a critical part of the prosecution case was that when the company moved to partial pillar extraction, the mining crews were exposed to greater danger because the width of the goaf was substantially increased (from 75 sqm to over 2000 sqm)… And Although there is no detailed evidence of it, it seems likely that in a general sense, under the previous method of mining, much smaller goaf areas were encountered and that under the partial pillar extraction method much wider goaf areas would be encountered… And …under its previous method of operation, the company had to address the safety of the operation including the recovery of a stranded miner, albeit in smaller areas of goaf. These extracts fit squarely with a consideration of development mining compared to PPE mining. 35 It is also apparent that his Honour's attention (at [190]) had been directed by Professor Galvin to the differences between development mining and the PPE system in relation to goaf sizes and the different risks associated with each type of mining: In addition, there were very significant differences between the cut and flit mining system and its associated environment and the pillar extraction mining system and mining environment at the site. The unsupported roof in the cut and flit mining system had maximum dimensions giving an area of 75 M². The unsupported ground (goaf) at the instant site was in the order of 2000 square metres. Therefore, the risk of a roof fall in the pillar extraction situation was significantly greater because the spans of the excavation were significantly greater, the weight of unsupported strata was significantly greater and the significantly greater area of unsupported roof introduced the possibility of additional roof failure modes coming into play. 36 We do not consider there is sufficient basis for us to conclude the primary judge wholly misunderstood or misconceived the difference between longwall mining and PPE mining to the extent that it led him into error in making the findings he did at [249] of his judgment. In our opinion, despite the references to longwall mining, his Honour understood the prosecution case to be that in PPE, the mining crews were exposed to greater danger because the width of the goaf was substantially increased (from 75 sq m to over 2000 sq m). His Honour also understood that prior to the shift to PPE mining, the company had to address the safety of the operation, including the recovery of a stranded CM, albeit in smaller areas of goaf and that larger areas of goaf would be encountered in PPE mining. That is so because in the development mining phase associated with the longwall mining previously undertaken, there had been occasions when miners were required to retrieve a stranded CM in a goaf area of about 75 sq m and in PPE mining the goaf area could be 2000 sq m. 37 Given that there had been experience of retrieving a CM in the development mining phase of longwall mining, it was not open to his Honour to find that there had been no such corporate experience when miners were called upon to retrieve a CM in PPE mining and, therefore, the basis upon which to find the company was ill equipped, through lack of experience, to deal with a stranded CM in PPE mining. His Honour understood there had been this previous experience and on that basis, recognising that the retrieval process in PPE mining was required to be carried out under different conditions because of the increased size of the goaf, found there was: [N]o evidence to suggest that the company failed to appreciate the risks associated with goaf widths under its previous mining systems and how they might change under the new method or that, in some respect or another, it failed to fully appreciate those risks and ensure the safety of the men. And [N]othing … in the evidence to suggest that the company was ill equipped or omitted to take some step to address those circumstances under the previous method of operation. 38 In our opinion, those findings were open to the primary judge. Subcategory 2 39 The second subcategory of pleaded error in Category A was his Honour's incorrect perception that it was common ground that the rescue of a buried CM was more dangerous than the rescue of a stranded CM. The relevance of this to the appellant's case seems to have been that its case was conducted on the basis that recovery of a buried CM and a stranded CM were discrete risks and had to be approached on that basis. So that, as we understand it, the fact that there had previously been an operation involving the retrieval of a buried CM in development mining did not mean that the risks associated with that operation would be the same as, or greater than, retrieving a stranded CM under unsupported roof. Therefore, any risk assessment relating to the recovery of a buried CM was not necessarily applicable to a stranded CM under unsupported roof. 40 The respondents had submitted at first instance that recovery of a buried miner was the more dangerous operation, relying on evidence given by District Inspector Barraclough, Deputy McAlary and Mr Milner. 41 The relevant statements of the primary judge were at [244] and [247]: [244] The prosecutor placed particular weight on the consultants' report and risk assessment identifying 64 separate risks in the partial pillar extraction process as generic to the process and stating that a further detailed study would be required when the panel and pillar design was finalised. Although there was some argument about what this meant, it seems clear enough that, having identified "generic risks to pillar extraction", the consultants were advising that once the actual design had been settled, specific issues may arise requiring a risk assessment. It is also significant that the consultants' report of May 2000 did not identify the risk associated with rescuing a continuous miner stranded under unsupported roof but dealt with what was conceded to be a more dangerous situation, the recovery of a buried continuous miner. In relation to the risks associated with that event, the potential controls identified were the development and implementation of a safe work procedure for recovering buried machines. … [247] … It was common ground that the rescue of a buried miner under unsupported roof was a more dangerous task than the retrieval of a stranded miner from under unsupported roof. 42 In his opening, and it was not deviated from, Mr Burbidge acknowledged there was 'a clear difference between a miner that has ceased to respond and a miner that is unable to be moved because it's been buried by rock'. However, there was no concession that recovery of a buried CM was more dangerous than a stranded CM. 43 We note Inspector Barraclough's evidence that he considered the risks to be different but acknowledged there were some situations where the risk associated with a buried CM were greater. He said that the nature of the risk was 'very situation specific'. 44 The evidence of Deputy McAlary and Mr Milner was to the effect that the recovery of a buried CM was the more dangerous operation. 45 The appellant relied on Dr Galvin's evidence to submit that it was implicit in what he said that the risks were different. The evidence referred to was Professor Galvin's March 2005 Report tendered in the proceedings: The risk assessment related to the introduction of pillar extraction at Bellambi West was undertaken [by HMS Consultants] in May 2000…. The risk assessment identified the risk associated with a CM becoming buried during pillar extraction. No existing controls were identified. A potential control was identified to be Develop and implement a SWP for recovering buried machines. The risks associated with a CM becoming immobilised under unsupported roof during pillar extraction were not identified in the risk assessment. 46 Given this is a criminal case we are not prepared to draw the inference that the appellant submitted existed from Professor Galvin's report. 47 The conclusion we would draw from the materials is that it was not common ground that the rescue of a buried CM under unsupported roof was a more dangerous task than the retrieval of a stranded CM from under unsupported roof, in the sense that the appellant and the respondent were ad idem on this issue in their respective cases. The appellant clearly put that both situations were dangerous but the risks were different. To that extent his Honour erred. However, the weight of the evidence tended to favour the proposition that the risk of retrieving a buried CM was greater than the risk of recovering a stranded CM. In that circumstance, the implications of the error for the outcome of the trial would appear to be negligible because his Honour proceeded on the basis that 'the rescue of a buried miner under unsupported roof was a more dangerous task than the retrieval of a stranded miner from under unsupported roof'. That finding was open to him. Subcategory 3 48 The third subcategory of error in Category A pleaded by the appellant was his Honour's incorrect understanding that an expert opinion that was proffered by a witness was instead an assumption the expert had been asked to make. In particular, it was pleaded that Haylen J misdirected himself as to the evidence in finding that it was an assumption upon which Professor Galvin was to proceed that the crew working were left to their own devices under the new mining method and therefore relied on the cut and flit method without assessing its suitability; his Honour erred in failing to give any or any adequate weight to the opinion evidence of Professor Galvin that the 519 Panel crew were unguided and left to their own devices and planning; and his Honour erred in failing to give any or any adequate weight to the opinion evidence of Professor Galvin that the 519 Panel crew adopted a procedure that was devised for recovering an immobilised CM from a significantly different mining environment. 49 In his March 2005 Report, Professor Galvin stated: The Bellambi West Colliery written procedure for recovering an inoperative CM from under unsupported roof in cut and flit mining was modified prior to the accident and could be summarised in terms of "Two rows of props, driver's side straight out"11. There were very significant differences between the cut and flit mining system and mining environment and the pillar extraction mining system and mining environment at the site of the incident. I have been asked to assume that the cut and flit recovery procedure was applied by the mine workers to recovering the CM immobilised in the pillar extraction lift on the 20 December 200012. It is my opinion that as a result of the Defendant failing to identify risks associated with recovering an immobilised CM from a lift in pillar extraction and to develop a relevant SWP for this task: i. The 519 Panel crew were unguided and left to their own devices and planning. The persons to whom the decision making was left were not trained or competent for the circumstances that confronted them. They adopted a procedure that was devised for recovering an immobilised CM from a significantly different mining environment … (footnote 10 omitted) 50 Footnote 11 in the above quote was a reference to one of the assumptions Professor Galvin was asked to make in preparing his Report. It was assumption xix: xix The modified procedure called for the use of timber props to support roof when accessing a CM under unsupported roof. It is to be assumed that the procedure was summarised in the terms: "Two rows of props, driver's side [i.e. right hand side], straight out" [i.e., by the shortest direct route]. 51 Footnote 12 was assumption xxxi: xxxi The crew decided to approach the CM by setting two rows of props straight out from the closest supported roof to the "driver's side" of the CM as per the modified cut and flit recovery procedure. 52 In his judgment at [185] Haylen J quoted the relevant parts from the Professor's Report. At [268], [275], [279] and [282] his Honour relevantly stated: [268] … Importantly, the evidence does not disclose that the men were left to their own devices under the new mining method and therefore relied on the cut and flit method without assessing its suitability. This was an important assumption upon which Professor Galvin was asked to proceed. … [275] It appears , therefore, that this particular revolves around the allegation based upon Professor Galvin's evidence that the work had not been the subject of a proper risk assessment and that a relevant safe working procedure had not been developed so that the panel crew were unguided and left to their own devices and planning and they were not trained or competent with the decision-making involved but adopted a procedure devised for a significantly different mining environment. Professor Galvin's views of course were expressed in relation to the assumptions he was given. In important respects a number of those assumptions were not made out on the evidence: for reasons already stated, there was a risk assessment and there was a safe work procedure. … [279] … The assumption that the crew were instructed to recover the miner using the cut and flit technique was incorrect in the context that they did so when left to their own devices and not being instructed what to do in relation to a recovery in pillar extraction mining. On 24 November 2000, Mr Milner had informed the crews what the recovery process would be applicable in pillar mining. … [282] The fourth essential particular is the allegation that, on 20 December 2000, the company permitted employees without appropriate seniority and qualifications to determine the methodology for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. It is clear from the discussion to this point that the Court rejects the notion that this crew and the mining crews generally were left to their own devices in relation to the recovery of a continuous miner from under unsupported roof. Mr Milner had addressed them at the toolbox meeting as to the steps to be taken from the preliminary observations through to making an assessment of the particular circumstances and the choice to be made between the two bolters and timber props or any combination thereof to support the roof during the rescue exercise. To this extent they had been given direction as to the method of recovery - a point conceded by Professor Galvin. What happened thereafter, as the witnesses agreed, depended on the particular circumstances. 53 The appellant's point seems to be that because the primary judge treated Professor Galvin's opinion regarding the panel crew being left to its own devices as an assumption that the Professor had been asked to make in preparing his Report, his Honour did not, therefore, give weight or adequate weight to that expert opinion evidence or to the evidence that the crew adopted a procedure that was devised for recovering an immobilised CM from a significantly different mining environment. 54 The appellant submitted that: His Honour's conclusion in the second last sentence of [268] that "the evidence does not disclose that the men were left to their own devices under the new method and therefore relied on the cut and flit method without assessing its suitability" cannot be supported. His Honour erroneously categorised Prof Galvin's expert opinion to this effect as "an important assumption upon which he was asked to proceed." It is his opinion, expressed in Ex Q. 55 It is apparent that the primary judge erred in referring to Professor's Galvin's opinion regarding being 'left to their own devices' as an assumption. Of itself that error is neither here nor there. The question is whether, because of his error, the trial judge failed to give adequate weight to the matters referred to by the appellant. 56 As to the opinion regarding the panel crew being left to its own devices and planning and, therefore, had to rely on the cut and flit method without assessing its suitability, we find it difficult to see how that opinion could have been arrived at. It implies the panel crew was entirely on its own, with no training or instruction or assistance having been provided as to how to recover a stranded CM under unsupported roof in PPE mining. As Haylen J found, Mr Milner conducted a toolbox talk on 24 November 2000 for each shift and dealt with pillar extraction operating procedures using a whiteboard and overhead projector. At [267] Haylen J stated: During this toolbox talk, Mr Milner dealt with the recovery of a stranded continuous miner and the crews were told they were to carry out their normal pre-inspections and that they were to look at each situation as it would always be different and then an assessment would have to be made whether to use the Fletcher bolter, hand held bolters, timber props or any combination. At minimum it was necessary, as with any support, to create a safe work area. Mr Milner also went through a draft procedure for recovery of a buried miner and told the crews that, if that situation occurred, they were to stop and ring him even if he was at home. 57 That accurately reflects Mr Milner's evidence, the effect of which was that he did not confine the recovery operation to use of timber props, but rather indicated there could be a combination of methods depending upon the situation. It was reasonably open to Haylen J to accept that evidence. Thus, putting aside for present purposes whether the instruction was appropriate for the circumstances, the crew were given instructions and training on what to do in the event it became necessary to recover a stranded CM in PPE mining operations. 58 A proposition that the crew was left to its own devices is, therefore, not sustainable. Moreover, the crew had been provided with training and instruction on sounding and barring down the roof and in relation to the prohibition against entering an area of unsupported roof. Indeed, miners had recently (mid-October 2000) been disciplined for doing so against explicit instructions. 59 Ground 34 of the appeal alleged that Haylen J failed to give any, or any adequate, weight to the opinion evidence of Professor Galvin that the 519 Panel crew adopted a procedure that was devised for recovering an immobilised CM from a significantly different mining environment. 60 The evidence indicated that the procedure adopted to recover a stranded CM in development or cut and flit mining was also applied in relation to PPE mining operations. At [268] Haylen J observed: Mr Milner made it clear in cross-examination that as at December 2000 there was a safe work procedure for the recovery of an immobilised continuous miner and that the procedure had been provided to all crews in the course of toolbox talks and orally, with the assistance of a diagram. It seemed to be accepted that Mr Milner did not make a distinction between the cut and flit operation and the partial pillar extraction operation but had treated the method as equally appropriate, having addressed the men just a few days before the University of New South Wales presentations in relation to partial pillar extraction and he did so in the context of the rescue procedure to be used in the new pillar extraction method of mining. ... 61 In formulating his opinion about the inappropriateness of using the cut and flit recovery method in PPE mining, Professor Galvin relied on the assumption that the written procedure for recovering an inoperative CM from under unsupported roof in cut and flit mining was modified prior to the accident and could be summarised in terms of 'Two rows of props, driver's side straight out'. That is, the modified procedure called for the use of timber props to support roof when recovering a CM under unsupported roof. In his oral evidence Professor Galvin stated 'I was critical that in all circumstances you would just automatically go to two rows of props straight out'. 62 Professor Galvin appears to have interpreted the assumption as being that Mr Milner had instructed the crew to use only timber props in recovering a stranded CM. Haylen J found (at [278]) that was an incorrect assumption: Professor Galvin was mistaken in his view that the modified procedure adopted by Mr Milner was to prohibit the use of the Fletcher bolter and hand held bolters so that the only method of recovery was to be propping out by using two rows driver's side, straight out. There appears to be no recognition that the men had been instructed repeatedly about assessing the roof, including sounding the roof and where necessary, barring it down. When the terms of what Mr Milner had instructed the men in this regard over a period of time were put to Professor Galvin, he accepted that approach as being appropriate. 63 We consider his Honour was correct in finding Professor Galvin was mistaken. Importantly, as Haylen J records at [195], Professor Galvin's Report: [W]as premised on identifying the option that may be required in advance but accepted that every case had to be treated on its merits at the time. To that end, sometimes the circumstances may make it preferable to use a Fletcher bolter to the extent that it could be used or if unavailable or because of other circumstances, a combination of the Fletcher bolter and other techniques such as hand bolting and timber propping would be appropriate. There needed to be some flexibility of method to meet the particular circumstances confronting workers and sometimes if there was no option about using the Fletcher bolter, then the next step would be to consider the alternatives. Professor Galvin agreed that, as it turned out in this pillar extraction site, the immobilised continuous miner was recovered by a combination of the use of a Fletcher bolter, a hand held bolter and timber props. That was an example of a desirable approach in using a combination of techniques for the circumstances and demonstrating the flexibility of approach required. He agreed that in the context of an overall safe work position, if the Mine Manager had directed that the men were to consider the use of a Fletcher bolter as far as it could be used, a hand held bolter and timber props in suitable combination, that was a desirable approach but an important preliminary which was fundamental was sounding a stone roof. 64 Professor Galvin's evidence in this respect is to be found in his cross-examination by Mr Watson SC, who appeared for Mr Milner: Q. What I want to do is just ask you whether in reality what you were saying is that going upon the circumstances it might be preferable to use to the extent that it can be used a Fletcher bolter? A. Yes. Q. Or if that was unavailable, consideration would need to be different, to using a Fletcher bolter, a combination of a Fletcher bolter and other techniques such as hand bolting and timber propping? A. Yes. Q. Or if the occasion meant a Fletcher bolter could not be used at all, flexibility would need to be there so that hand bolting and timber propping be used in some suitable combination? A. Yes if you had no option, yes that is the next step. … Q. As it turns out, in the pillar extraction the immobilised continuous miner was recovered by a combination of the use of a Fletcher bolter and a handheld bolter and timber props, wasn't it? A. Yes. Q. And that idea of using a flexibility approach, of using those combination of techniques, is what would be desirable? A. Yes. ... EXHIBIT #15 DRAFT IN PREPARATION BY DR GALVIN DATED JUNE 2003 TENDERED, ADMITTED WITHOUT OBJECTION WATSON Q. If you've got that, Prof Galvin, you'll see on page 14 there's a second new paragraph commencing with the words "it is for these". Do you see that paragraph? A. Yes. … Q. Actually I described it as the "second new paragraph". First new paragraph. It's the paragraph commencing with the words "it is for". Three lines down, there are two sentences. I'll read them so they're on the record: "However, it is not practical to have a single rigid procedure. Each case needs to be assessed on its own merits." … Q. What that's talking about is the material we've just been through; that is, that in devising a technique for the recovery of the immobilised continuous miner, there shouldn't be a rigid direction made, but rather flexibility introduced based on an assessment of the merits of each case? A. What it's talking about is taking into account each situation; for example, the corner cut off that stook or how far out the miner happens to be or what the roof conditions currently are. You have to look at the local circumstances and evaluate your approach based on each local situation. Q. Would it be desirable in those circumstances if an individual crew had been directed in terms that when looking at the circumstances where a continuous miner had to be recovered, care has to be taken how in particular circumstances the miner could be recovered? In other words, you have to take care about considering-- A. Yeah, it has to be a considered approach to how you go about it, yes. Q. And so it would be desirable if, for example, the direction which was actually given to the crew was one which emphasised the need to look at the situation and to make a careful judgment about it? A. The crew needs some criteria to decide-- Q. Just answer my question. Would that be desirable? A. Yes, a core criteria. Q. And here's another criterion which I suggest would be desirable: the crew be directed in a way which emphasised that under no circumstances should they be regarded as being rushed to make a decision? A. Yes. Q. And it would also be desirable that the direction was one which made clear that the recovery of the immobilised miner had to be done safely regardless of the time that it took? A. Definitely. 65 There was further cross-examination of Professor Galvin by Mr B Docking of counsel for Mr Baldwin on this point: Q. And do you see that Mr Murray said under that "verbal procedures", that gave to all shifts the ability to use either the Fletcher roof bolts or props? A. Yes. Q. And he confirmed at lines 42 and 45, it was a procedure, a verbal one developed to convey to all shifts via toolbox talks, and it would be accepted that it would be that way, the choice that would be afforded to crews? A. Yes. Q. And consistent with what you'd said to Mr Watson when he asked questions, for a pillar extraction operation, because mining is dynamic, that's the sort of flexibility the crew needs to have to decide in one case it might be appropriate to use a Fletcher bolter to recover an immobilised miner. That's right? A. In one case it might be, yes. Q. And in another case it might be using timber props for that purpose? A. Possibly, yes. Q. And in another case it might be using some sort of bolts installed by a handheld bolting equipment? A. Yes. 66 Professor Galvin also conceded that directions given to assess, sound and bar down the roof were appropriate. At [199] Haylen J found: ... It was not necessary for the Deputy to go to someone superior before deciding whether to sound the roof. Professor Galvin accepted that it would have been effective if the Mine Manager had instilled in the workers the need to sound the roof and on an indication of a "drummy" roof, then to step back: if that had occurred when it was found to be a drummy roof, then that would have been "quite effective". ... 67 The finding was based on the following evidence, elicited in cross-examination of Professor Galvin by Mr Watson: Q. I want to make it clear. I'm talking about what happened here; that, confronted with this, if the mine manager had instilled in workers the need to sound the roof and, on any indication of an unsafe roof, then to step back; then that mine manager had done everything that was humanly appropriate to try and avoid an accident like this occurring, hadn't he? A. Are you saying he asked them to sound the roof? Q. Told them to sound the roof. A. Told them, and then you're saying if it was drummy they were to step back? Q. Yes. A. Well, if they did no more than that, that would have been quite effective. Q. But you agree here that if the mine manager had told them to sound the roof and if that message got through and any one of these workers had sounded the roof, they would have discovered it was drummy? A. Only if they had done it properly, yes. Q. And if they'd done it properly, the accident wouldn't have happened? A. At that site, yes. 68 If it be the case, as it was, that Professor Galvin accepted it was not appropriate to adopt a single inflexible method of recovering CMs under unsupported roof because each situation was different and accepted that the Fletcher bolter, hand held bolter and props either individually or in combination could be used to recover a CM depending upon the circumstances, it could not be held that Haylen J erred in the manner asserted in appeal ground 34. Regardless of whether the 519 Panel crew adopted a procedure that was devised for recovering an immobilised CM from a significantly different mining environment, it was accepted by the expert witness that such a procedure could be applied in that different environment. As it will shortly be discussed, Professor Galvin's objection was that the option of using timber props was inappropriate for the conditions that applied on 20 December 2000 and that there was insufficient direction given as to how it should be decided which option should have been used. 69 That Professor Galvin appears to have assumed that Mr Milner instructed the crew to adopt the procedure summarised as 'Two rows of props, driver's side straight out' may have influenced his view about the inappropriateness of using the cut and flit method of recovery being applied in PPE mining. We note that in the course of cut and flit mining in November 2000 timber props were used on two occasions in plunges, when the CM became inoperative under unsupported roof. Professor Galvin may have believed based on information provided to him by way of assumptions to be made that 'Two rows of props, driver's side straight out' was the only method that the crew had been instructed to use both in the cut and flit and PPE operations. That, of course, was not so. 70 Having made that observation we are aware of Professor Galvin's view that, despite his acceptance that the Fletcher bolter, hand held bolter and props, either individually or in combination, could be used to recover a CM in PPE mining, the use of timber props in the circumstances prevailing on 20 December 2000 was inappropriate. In answer to questions from the primary judge, Professor Galvin gave the following responses: Q. And in the incident that we are faced with here do I understand you to say that any combination of timber props Fletcher bolting and hand bolting were proper to consider? A. They were all options to consider. Any combination, if not the meaning of random(sic), they are options to be used and could be used together or in combination. Q. And in this case the choice of the timber props, why was that inappropriate? A. My assumption was given to be two rows straight out shortest distance. On the basis of that assumption I considered it appropriate ( scilicet - inappropriate) because starting, those props started back from the stook, quite a number of metres back from the more rigid solid line, but more importantly they had to go quite a long way out into the goaf, perhaps 12 metres in the goaf and if you look at the plan on the board and you imagine where they end up, that put someone, they no longer have the protection of the stooks or the breaker-line supports, they only have the protection of the timber, and if there was a higher goaf fall it's quite foreseeable that those, one or two of those rows could be knocked off by the fall and that concerns me that that could happen. The other aspect is that if you look in the area behind the machine that is also quite a reasonable area and even a localised fall could possibly come from that direction towards the breaker props and also result in one or two rows being knocked over , so it's just the construction of it is just two rows on their own , I believe, is inappropriate . Q. Are there occasions when it's quite appropriate for the crew to make the decision as to how they will rescue the immobilised continuous miner? A. Yes, there are. Q. In what way are they different to the incident that is considered here, that we are considering here? A. In my experience the cases when the crew, when it's appropriate for the crew to decide what to do, have always been premised on a risk assessment and that risk assessment has looked at the various options for approaching a [continuous] miner. It endeavours to identify the different types of circumstances that a miner could become immobilised in and then, having assessed the risks associated with each of those types of circumstances, decisions are made whether; for example, I will give two examples, it perhaps makes it simpler, it could be that the risk assessment decides that if the miner is 11 X, metres in the lift, 6 metres, that it's appropriate for the deputy to decide how to approach it, or it could be that if the roof conditions appear good and there is no structural disturbances that again it's appropriate for the deputy to make the decision and from there they work through. If there is poor geology or perhaps the machine is a long way out or things are not to scale, it really depends on what comes out of the risk assessment for that mine. Q. You see for a crew in the position that this crew was in, what is to guide them as to who should make the decision? A. The guideline should be [the] existence of a safe working procedure for pillar extraction that provides a deputy with guidance as to what the circumstances are and what the options are in those circumstances (our emphasis). 71 Further, whilst accepting the Fletcher bolter, hand held bolter and props, either individually or in combination, could be used to recover a CM in PPE mining, Professor Galvin's view was that there should have been a structured approach, with guidance according to identified conditions and circumstances, with the structure embodied in a SWP, developed on the basis of 'risk assessment for that mine'. Instead, it was submitted for the appellant that: What existed at Bellambi West was a smorgasbord of subjective options, with no guidance as to how the task was to be approached, no system or structure for the involvement of more senior mining officials; and no review of the procedure for cut and flit operations to take account of the changed mining method. 72 We shall deal with these matters later in the judgment. However, for the reasons given, the fact that Professor Galvin regarded the timber props option as inappropriate for use on 20 December 2000 and was critical of what he regarded as a lack of direction or guidance as to which option was appropriate, is no basis upon which to find Haylen J erred in failing to 'give any or any adequate weight to the opinion evidence of Professor Galvin that the 519 Panel crew adopted a procedure that was devised for recovering an immobilised continuous miner from a significantly different mining environment'. CATEGORY B APPEAL GROUNDS 73 The Category B appeal grounds relate to the particular of the charge that alleged the company failed to establish a SWP for the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. 74 Haylen J dealt with the SWP particular at [260]-[273] of his judgment. We should note, first, what his Honour said at [257]: [257] Another aspect to be considered is the fact that nobody, including Professor Galvin, had actually seen a documented safe work procedure of the type required by the Chief Inspector or spoken about Professor Galvin as being appropriate, or one with a requirement that an Under-manager or a person higher in the managerial structure should have control of the rescue of a stranded continuous miner. As earlier noted Professor Galvin, during cross-examination, did accept the necessity for flexibility in the procedures to be adopted in recognition of the many different situations that arose in the dynamics of mining and that, therefore, each circumstance had to be closely considered. Having agreed to that position, it is difficult to see how a position could then be reached that, in all circumstances, it was mandatory that an Under-manager or above had to be in control of the rescue exercise and the methods adopted and that there should be a detailed and documented safe work practice that could realistically meet all of the possible circumstances in which a continuous miner might have to be rescued. Mr Milner pointed out that there was practically no difference between the system of recovery he had instructed the crews to adopt (including at toolbox talks) and the system adopted to recover this particular stranded continuous miner: all of the options remained open and effective. 75 At [261] his Honour stated: [261] In the present case, the written direction was in relation to cut and flit mining and involved the use of the Fletcher bolter and the hand held bolter. That procedure was amended, orally, at a toolbox talk with the use of a whiteboard to demonstrate the technique and included the added option of using timber props. Those means of recovering a stranded continuous miner were to be used alone or in any suitable combination, depending on the circumstances of a particular incident. The need for that flexibility was recognised in the evidence of Professor Galvin, Inspector Barraclough and Mr Milner . It seems, therefore, that nothing should turn on the fact that the procedure was not documented for the partial pillar extraction method of mining. It was the subject of instruction and demonstration at toolbox talks, together with the instruction to always pay regard to, and closely inspect, the nature of the roof, to sound the roof and bar it down where appropriate. In my view, this combination of instruction repeated over a period of time represents a safe work procedure for the recovery of an immobilised continuous miner. It was always emphasised to the crews that, if they struck a situation that was unusual or where they felt uncomfortable about proceeding or they did not know what to do, they were to stop work and contact the Under-manager or the Mine Manager, Mr Milner. Such an instruction would cover situations where there was thought to be a possibility of a goaf fall. That approach contains all the main elements of the scheme approved by the Inspector for the recovery of the continuous miner involved in this particular incident, except for the different emphasis in that approved method of control being exercised at particular points over the recovery process by the Under-manager. 76 At [269]-[273] his Honour stated: [269] Having regard to Professor Galvin's evidence and the course of the evidence, there was a suggestion in the prosecutor's case that the safe working procedure should be documented. As already pointed out, Mr Grey-Spence had stated that, for many years, pillar extraction had been performed without documented safe work procedures as each situation was different and therefore there needed to be a mini-risk analysis conducted on site to assess the circumstances then present. [270] Not all work circumstances require a documented safe work practice. Many judgments of the Court provide examples of documented systems that are not enforced, but there are others where it is shown that there was a safe system of work and it was enforced although it was not documented. In WorkCover Authority (Inspector Patton) v Fletcher Constructions Aust Ltd (2002) 123 IR 121 at [82], the Vice-President, Walton J, stated that: '... (I) would not wish to be taken as establishing a requirement that all businesses must develop extensive written documents setting out in detail every aspect of a particular task. What is required is dependent upon the particular circumstances and will be heavily influenced by the nature of the work and the exigencies of the particular work environment. It is inappropriate to attempt to spell out what is required in any given situation. However, one thing is clear. The method of work, as one component of the safe system of work, is a foundation element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend for their effective operation. It is the employer's obligation to 'ensure' that the system is safe.' In Inspector Kilpatrick v Jae My Pty Ltd (2004) 136 IR 148, the Full Bench accepted that the authorities have made it clear that not all systems of work must be documented, citing Fletcher, and further noting that on the job training in particular work may be sufficient to ensure safety, citing Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [61]. [271] It is significant that the substance of Mr Grey-Spence's evidence was not challenged or contradicted and that none of the experienced inspectors or experts were able to produce a detailed standard SWP for the recovery of a stranded continuous miner from under unsupported roof, especially in partial pillar extraction mining. The guideline and assessment document did not attempt to lay out such a prescriptive document nor did the consultants in supplying a risk assessment to accompany the s 138 Application. The Chief Inspector did not impose any further conditions when granting the s 138 Application and in particular, did not draw attention to the fact that there was an inadequate procedure for the rescue of an immobilised continuous miner. In the course presented by the University of New South Wales, Professor Hebblewhite and Dr Shepherd provided statistics in relation to injuries associated with rescuing continuous miners but again there is no suggestion of a requirement for some detailed documented recovery procedure. [272] Having considered this evidence, the Court is satisfied that there was a SWP that met industry and safety standards for the recovery of a stranded continuous miner under unsupported roof and that procedure had been reinforced with the crews from the middle of 2000 until just before partial pillar extraction mining commenced. The procedure was detailed, as earlier discussed. Importantly, it was emphasised that every situation would be different: that is why it was impractical to issue a fully documented SWP. This is one of the circumstances, recognised as happening from time to time in pillar extractions, where the absence of a documented process did not mean that there was an absence of a safe work procedure and that it was not reinforced with the mining crews. For those reasons, the prosecutor's second essential particular is not established. [273] To the extent that the prosecutor's case was that there was a lack of a system in relation to who was to take charge, what notice was to be given, what approval was to be given and what instructions were to given as to particular dangers or precautions to be taken, that they were in fact not formulated until after the accident, there is force in the submissions made on behalf of Mr Baldwin that the evidence demonstrated that, as the statutory Deputy, Mr McAlary was always in charge of the safety of the crew and had discussed the appropriate method of recovery with Mr Rowles and Mr Aspinall. Notice was to be given to the Under-manager if problems arose that the crew were not trained to meet. The instructions had been set out in detail at the toolbox talks. 77 It may be seen from these extracts that Haylen J found that it was not essential there be a documented SWP, indeed his Honour found that it was impractical. His Honour also found that although there was no documented SWP for recovering a stranded CM under unsupported roof in PPE mining, nevertheless, 'there was a SWP that met industry and safety standards'. 78 The appellant submitted that there was within the mining industry a well-documented need for an effective written SWP. The need was documented in the number of publications identified in Professor Galvin's report; most specifically in Guidelines MDG 5002 and the accompanying assessment document MDG 5002a. 79 MDG 5002 called for a systematic approach to adequately manage the hazards inherent in the use of remote-controlled mining equipment. The assessment document, MDG 5002a, was set out in five column format, headed respectively: Audit Point, Questions, Guidance Notes, Support Documentation and (a blank column) Mine Response. Audit point 2.7, dealing with equipment recovery, envisaged a written procedure document, it was submitted. 80 It was further submitted for the appellant that: (a) his Honour erred in concluding at [261] that the need for flexibility of which witnesses spoke meant 'that nothing should turn on the fact that the procedure was not documented for the partial pillar extraction method of mining'; (b) his Honour's conclusion at [261] that oral instructions repeated from time to time 'represents a safe work procedure for the recovery of an immobilised continuous miner' was in error; (c) his Honour's observation at [261] that '[s]uch an instruction would cover situations where there was thought to be a possibility of a goaf fall' failed to recognise an essential aspect of mining namely, a goaf fall may occur without warning, and his Honour was in error in concluding 'all the main elements of the scheme approved by the Inspector for the recovery…' were met by an oral instruction that should miners strike 'a situation that was unusual or where they felt uncomfortable … they were to stop work and contact the Under-manager or the Mine Manager'; (d) the statement made by Mr Gray-Spence, Deputy Mine Manager, that '[f]or many years pillar extraction was done without safe work procedures to recover continuous miners' did not provide any basis for his Honour's conclusion that the SWP need not be documented nor did it purport to represent current best practice. It was noted Mr Gray-Spence was not called; (e) his Honour referred to the evidence of the Training Coordinator, Mr Murray, at [263] that he: ... understood that the University of New South Wales course examined a number of scenarios for recovery options and the miners went through that exercise. Mr McAlary's evidence is to the same effect. It was Mr Murray's understanding that those presentations included the process for the recovery of an immobilised miner from a pillar lift in general terms but not specific to the Bellambi West Mine. In addition, it was his view that the pillar extraction component of mining was basically irrelevant to what happened in the accident: thus, the alternatives that had previously been spoken about while the Mine was in the cut and flit operation were appropriate for partial pillar operation for the recovery of a stranded miner. It was submitted that what Mr Murray had to say did not offer any greater support for his Honour's conclusion that the SWP need not be documented and that the conclusion '…thus, the alternatives that had previously been spoken about while the Mine was in the cut and flit operation were appropriate for partial pillar operation for the recovery of a stranded miner' did not follow; (f) the reference to authority by his Honour (at [270] ) did not take account of the existence of the mining design guidelines relevant to the mining industry, nor to the particularly hazardous nature of the work involved; (g) his Honour's observation (at [271]) that there was no 'detailed standard SWP for the recovery of a stranded continuous miner' put in evidence overlooked the evidence that each SWP should be developed in respect of the particular conditions that it was created to address. SWP4 was an example of such a document. (h) the conclusion his Honour reached (at [272]) that '…there was a SWP that met industry and safety standards for the recovery of a stranded continuous miner under unsupported roof' was, so far as PPE conditions were concerned, in error; (i) a causal link between an inadequate SWP and a risk to the safety of the crew was established by the evidence. Particular (k)(ii) 81 Haylen J noted at [7] of his judgment: Both defendants entered pleas of not guilty to the charges particularised and at the hearing, the prosecutor made it clear that the essence of the charge were those matters set out in paragraph (k). 82 The relevant particular of the charge, therefore, was that the company failed 'to establish a Safe Work Procedure for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations'. However, particular (j) stated: As at 20 December 2000 the company had no written or other adequate Safe Work Procedure or instructions in place for the recovery of an immobilised continuous miner from under unsupported roof appropriate to the pillar extraction coal mining operations being undertaken at the mine 83 In his opening address, Queen's Counsel for the appellant relevantly submitted: The second particular asserts the absence of a relevant written safe work procedure. The need for such a procedure was well documented in the NSW underground coal mining industry prior to 20 December 2000 in Guidelines for the Use of Remote Controlled Mining Equipment, Mining Design Guideline 5002 and elsewhere. It's required by risk management requirements of clause 6 of the Coal Mines Regulation 1999 [sic]. 84 In fact, the second particular does not assert the absence of a relevant written SWP because the reference to 'second particular' is a reference to sub-particular (ii) in particular (k). Nevertheless, it appears that the respondents proceeded to defend the charge on a combination of particular (j) and particular (k)(ii) in that they sought to contend that the appellant had not made out the allegation that the company had no written or other SWP or instructions in place. We will proceed on that basis. 85 The appellant was plainly correct in submitting that MDG 5002a envisaged that a procedure should be developed for the recovery of mining equipment from dangerous locations and that the procedure be documented. Prior to 20 December 2000 there was no documented procedure for recovering a stranded CM under unsupported roof in PPE mining. 86 We are conscious of the fact that mining is a particularly dangerous operation. We are also conscious of the guidelines in MDG 5002a, which undoubtedly envisaged a written procedure and that, following the incident on 20 December 2000, an SWP (SWP4) was devised for the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. Further, a written procedure existed for retrieving buried CMs in cut and flit mining operations. 87 We understand the arguments against a written procedure; that it could introduce an undesirable degree of inflexibility into the recovery process when each situation is different and circumstances are constantly changing. Nevertheless, by way of obiter we suggest it is desirable for a written procedure to be promulgated in respect of such dangerous operations as recovery of a stranded CM so as to at least constitute a benchmark or common reference point for carrying out the recovery process. There is no reason why flexibility cannot be built into the written procedure as it was in SWP4. 88 We note the submissions for Mr Baldwin that the company had to deal with a range of literacy amongst the miners and Mr Milner had experienced a low level of literacy and even illiteracy amongst mine workers. However, that does not preclude the desirability of a written procedure in order to provide a basal guide or standard to be disseminated by appropriate means. 89 There was, as we earlier found, a complete absence of a written procedure. However, there was no statutory or other mandated requirement for the company to have a written SWP. Further, the authorities make it plain that not all systems of work must be documented: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57 at [56], [57] and [71]; Inspector Kilpatrick v Jae My Pty Limited [2004] NSWIRComm 109; (2004) 136 IR 148 at [23] and [31]; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2002) 123 IR 121 at [82]. 90 The absence of a written procedure, therefore, is not conclusive of a failure to have an SWP. In any event, the appellant did not prove to the relevant standard that the absence of a documented SWP was causally connected to the risk. That is to say, it was not proven beyond reasonable doubt that because no procedure existed in writing, that caused the relevant personnel to be exposed to a risk to their health and safety when engaged in rescuing a CM stranded under unsupported roof. 91 That leaves the question of whether there was any other SWP. Haylen J, of course, found that there was. Its main constituent elements appear to have been (see [240]): · a close inspection of the roof and the sides to assess their stability; · a sounding of the roof and a barring down as necessary at the place where the work was to commence to give support to the roof; · all the circumstances were to be considered; · depending on those circumstances, the roof could be supported by using the Fletcher bolter, the hand held bolter, at least two rows of timber props or any combination of these methods; · the crew was to use the Eimco to clean up the floor and could use the bucket to scrape the roof, if necessary; and · if the crew was not sure of what step to take, work should cease and the assistance sought of either the Under-Manager or the Mine Manager. 92 It is undoubtedly the case that there was a procedure for recovering a CM stranded under unsupported roof in PPE mining operations. However, the appellant's case was that the procedure identified by Haylen J was not an effective or adequate safe work procedure. That is to say, the oral instructions given by Mr Milner did not provide the crew with a structured, systematic method of safely recovering a stranded CM; it left the crew without proper guidance: who was to take charge and instructions as to particular dangers or precautions to be taken were not matters addressed in the toolbox talk on 24 November 2000. In the absence of adequate guidance and against the background of the understanding of the crew that any recovery plan required the use of two rows of props over the shortest distance to the right hand side of the stranded CM, as instructed by Mr Milner at the toolbox talk, the crew thought that was the appropriate method to employ on 20 December 2000. 93 This is a matter that has troubled us: whether the procedure laid down by Mr Milner on 24 November 2000 adequately equipped the crew to understand the risk that confronted them on 20 December in attempting to recover the stranded CM and to take appropriate steps to avoid or minimise the risk. There does appear to have been an almost automatic assumption on the part of the crew, or at least some of them, that the appropriate method was to use two rows of timber props over the shortest distance to the right hand side of the stranded CM and there did not appear to be any consideration of the risk of a regional goaf fall and the implications of that for the safety of miners protected only by two rows of props. As Professor Galvin stated in his evidence: [T]hey [members of the crew] had to go quite a long way out into the goaf, perhaps 12 metres in the goaf and if you look at the plan on the board and you imagine where they end up, that put someone, they no longer have the protection of the stooks or the breaker-line supports, they only have the protection of the timber, and if there was a higher goaf fall it's quite foreseeable that those, one or two of those rows could be knocked off by the fall and that concerns me that that could happen. 94 When one considers the whole of the first instance judgment as it relates to the second particular it is evident that Haylen J had regard to the following matters: · Deputy McAlary was a miner of 11 years' experience with previous experience in PPE and a certified Deputy. He had no experience of recovering a CM under unsupported roof. However, he attended the toolbox talk on 24 November 2000 and had attended training in respect of PPE mining. He had performed a face and roof inspection on the shift on 20 December and then took charge of the recovery operation. He had a discussion with Mr Rowles and Mr Aspinall. A plan was devised with Mr Rowles saying that they should put up some props to make a walkway out to the CM and to support the roof; · at [254] of the judgment at first instance his Honour found, and it was reasonably open to him to find: [254] … The system of competency tickets qualifying miners to hold certain positions, including Mine Deputy, results in the day-to-day operations of a mine being able to be conducted with a Deputy being given a particular role to constantly consider the state of the walls and the roof and to consider issues of safety during the course of the shift. There was no analysis in the evidence as to what was lacking in the training of a Deputy (quite apart from Mr McAlary's training) that resulted in a Mine Deputy being inappropriately informed, trained and skilled to conduct a risk assessment and incapable of establishing a safe method for the retrieval of a stranded continuous miner from under unsupported roof. There was no analysis of the training of a Under-mine Manager or persons higher in the hierarchy to demonstrate that their training and experience would be so superior to that of a Mine Deputy that, generally, only people at that level should control the rescue of a stranded continuous miner … · SWP4, that is the procedure adopted after 20 December 2000 for the safe removal of a CM from unsupported roof, indicated that the panel Deputy had full statutory control unless the shift Under-Manager assumed control; · the foregoing indicates that a Deputy is qualified by training, experience and qualification of establishing a safe method for the retrieval of a stranded CM from under unsupported roof. This undermines the appellant's contention that there was doubt about who was in charge on the shift on 20 December and about whether Deputy McAlary was in a position to establish a safe method of recovery; · the miners engaged on the crew at the time of the accident all had significant experience working as miners and most of them had a great variety of mining experience; · the crew understood completely that they were not 'to go out under unsupported roof to do anything'; · the crew had been trained and certified in the use of the Fletcher bolter and the hand held bolter; · the crew was experienced in the method of timber propping; · the crew had been trained in and knew the procedure for barring down and sounding the roof; · the crew had been instructed repeatedly about assessing the roof, including sounding the roof and where necessary, barring it down; · the tasks involved in the rescue of this CM were well within the capabilities and training of the crew under the direction of Deputy McAlary. Sounding and barring down of the roof and using timber props was a normal part of the work of a miner who had been certified as competent to follow that calling in underground work; and · Mr Milner had given a toolbox talk on 24 November 2000 in relation to recovery of a CM under unsupported roof and had given instructions that: an inspection of the roof and the sides was to be carried out to assess their stability; a sounding of the roof and a barring down as necessary at the place where the work was to commence to give support to the roof; all the circumstances were to be considered; depending on those circumstances, the roof could be supported by using the Fletcher bolter, the hand held bolter, at least two rows of timber props or any combination of these methods; the crew was to use the Eimco to clean up the floor and could use the bucket to scrape the roof, if necessary; and if the crew was not sure of what step to take, work should cease and the assistance sought of either the Under-Manager or the Mine Manager. 95 The foregoing considerations indicate that there was a qualified person in charge of the recovery operation; the crew was experienced in the relevant aspects of mining including the use of bolters and timber props and barring and sounding the roof; there was an unequivocal instruction to miners not to go out under unsupported roof and there was a set of instructions about how to recover a stranded CM which allowed for a flexible approach depending on the circumstances, with a direction to seek assistance if there was any doubt or uncertainty about the method of recovery to be adopted. 96 The foregoing considerations were assessed by Haylen J in the light of the risks associated with recovering the stranded CM. They were the risk of a goaf fall and the risk of a more isolated laminates and stone plys fall. As his Honour implicitly recognised, any SWP to recover the stranded CM would have to have regard to such risks. Risk - localised roof fall 97 It is evident that Haylen J was aware of the risk of plys and laminates falling from the roof and the poor roof condition, understood that Mr Milner and the mine employees were aware of the possibility of small areas of a roof falling, understood measures were required to avoid the risk and was aware that the employees had been instructed and trained on those measures, which included closely inspecting the roof, sounding it and barring down: [144] The strata around 519 Panel was known to have laminates that were prone to falling and in the days prior to the accident it was know that some plys and laminates had fallen out from the roof. … … [221] At the end of May 2000, Dr Seedsman had participated in toolbox talks that had specifically dealt with sounding the roof and scaling down the roof and the presence of laminates and stone plys. It was stressed to the crews that attention needed to be applied to the presence of laminates and stone plys when dealing with supporting the roof and as an expert in this field, Dr Seedsman had attended the talks to assist in educating the crews and instructing them on the topic. One of the issues that regularly arose was the presence of plys in the immediate roof and it was an issue that he and Mr Milner regularly discussed how to manage and the hazards it presented. He had been present when Mr Milner had dealt with that topic with the crews. The laminates here being dealt with were fine grained material that separated the bands of sandstone and were 0.2 - 0.3 metres thick. The stone plys being referred to were layers of rock that behaved as individual beams. Dr Seedsman was present when this topic was covered in a number of toolbox talks. There had also been discussions about sounding the roof and how to go about that task. Dr Seedsman had attended the mine on 21 December 2000. He was asked if, based on his own observation, there was no indication of cave-in or goafing relating to the failure of the overlying strata. He replied that from what he had observed, it was only that lower slab that had collapsed and that the main part of the rock overburden was still in place. His assessment of the Panel and pillar layout was that it was behaving as he thought it would. … [247] A significant part of the prosecution case was the fact that there had been a history of roof falls of a relatively minor nature compared with an entire goaf fall but, nevertheless, presenting a risk to safety. Professor Galvin stated that, given the history of these falls, it was foreseeable that, when rescuing an isolated miner from under unsupported roof, one of the risks to be considered and taken into account and a risk that was clearly foreseeable was that there could be a roof fall. In those circumstances the usual procedure was to closely inspect the roof, sound it and bar it down as necessary. … [248] Accepting all these matters does not necessarily advance the prosecution case regarding any culpable acts or omissions by the company. There is nothing in the evidence that suggests that the company and/or its employees, including the crew working on the 519 Panel, were unaware of the frequency of roof falls in the area of that Panel or were unaware that the continuous miner might become isolated under unsupported roof. There is nothing in the evidence to suggest that the crew and in particular Mr Aspinall and Mr Rowles, went about the task of rescuing the continuous miner in ignorance of the condition of the roof or otherwise being uninformed about the possibility of having to rescue the continuous miner. Both those factors were relevant to the type of risk assessment that had to be undertaken and the method adopted to rescue the continuous miner. The evidence shows that Mr Milner and the mine employees were well aware of the possibility of small areas of a roof falling and that support had to be given to a roof when rescuing a continuous miner from under unsupported roof, no matter what type of mining operation was involved, including partial pillar extraction mining. … … [274] … More generally, Dr Seedsman had observed Mr Milner train the men at toolbox talks, especially in relation to sounding and looking for laminates: in his view, Mr Milner adopted best practice in the Mine's safety systems. … [278] … Professor Galvin was mistaken in his view that the modified procedure adopted by Mr Milner was to prohibit the use of the Fletcher bolter and hand held bolters so that the only method of recovery was to be propping out by using two rows driver's side, straight out. There appears to be no recognition that the men had been instructed repeatedly about assessing the roof, including sounding the roof and where necessary, barring it down. When the terms of what Mr Milner had instructed the men in this regard over a period of time were put to Professor Galvin, he accepted that approach as being appropriate. 98 It was undoubtedly the case that the company had a well established and well understood procedure in place to deal with the risk of localised roof falls. They were a common occurrence. The mine employees were under strict instructions not to venture under unsupported roof, they were to closely inspect the roof for the possibility of laminate and stone plys falling from the roof and were required to sound and bar down the roof where there was any prospect of a fall. Additionally depending on the state of the roof, it was to be supported by using the Fletcher bolter, the hand held bolter, timber props or any combination thereof. There is nothing in that procedure to indicate it was unsafe given that the functions necessary to carry out the procedure were within the competence of the Deputy and the mining crew. 99 We find that the procedure for dealing with the risk of laminate and stone plys falling from the roof was safe. Risk - wider goaf fall 100 The second area of risk, and the more problematic of the two, was the risk of a wider or regional goaf fall. Professor Galvin's report described the risk posed by the procedure that the crew had attempted to implement, namely, that a fall commencing anywhere within the goaf might engulf the aisle intended to be created by the erection of two rows of timber props. Professor Galvin noted that because of the additional function played by props as breakers when set in a pillar extraction environment, good practice required the props to be set as close as possible to a solid rib side. This location was that employed after the accident to recover the CM, with the roof bolted, not propped. 101 It was also Professor Galvin's evidence that: i. The occurrence of the roof fall associated with the incident on the 20 December 2000 in 519 Panel was foreseeable. ii. In light of the large mining spans associated with pillar extraction in 519 Panel and the nature of the immediate roof, the occurrence of a roof fall when lifting off in 519 Panel was foreseeable to the extent of being probable. iii. It was foreseeable that a roof fall in 519 Panel could possess sufficient energy as to present a grave risk to the health and safety of any person exposed to it. 102 In expressing that opinion in his report, Professor Galvin did not distinguish between a localised roof fall and a wider or regional goaf fall and although it is apparent he was of the view there was a risk of either or both types of fall, much of his report was directed to the risk of a localised fall, a risk that Haylen J accepted did exist and which we dealt with earlier. 103 Dr Winton Gale, an expert structural geologist, who had attended the mine on the day following the accident of 20 December 2000, quoted from his own report that stated that if timber props were to be used they would need to be: … placed adjacent … to a solid edge to minimise the risk of a goaf fall overriding the support. On the basis of goaf fall risk, such a location would be preferable to one initiated from the BLS support line. 104 Professor Hebblewhite's training materials also indicated that of 44 instances of buried CMs studied, there was no warning of impending fall in 37 per cent of them. Additionally, in a section of the materials titled 'Basic Principles', the point was made: 'When rocks fail in tension there is little or no warning.' 105 Notwithstanding this evidence, Haylen J found at [284] that there was no evidence of a risk of an unexpected goaf fall: [284] In relation to the prosecutor's suggestion that the crew were not experienced enough or informed enough of the risk of a wider goaf fall (rather than a more isolated laminates fall), the Court accepts the submissions for the defendants that, at the time of the attempted rescue of this stranded continuous miner, there was no evidence of a risk of what can only realistically be described as an unexpected goaf fall. As Dr Seedsman stated, the roof was behaving as was expected and there was in fact a prospect that the roof would hold up rather than fall in an expected time frame: there was nothing unexpected or unidentified about the behaviour of the roof. There was no evidence of a likely goaf or wider general fall, even shortly after the accident . 106 Earlier, at [144] Haylen J stated: [144] The strata around 519 Panel was known to have laminates that were prone to falling and in the days prior to the accident it was know that some plys and laminates had fallen out from the roof. Mr Milner was of the firm view that the miners would receive adequate notice of a goaf fall because the roof would indicate what was happening. This did not apply to minor falls: it was possible for a goaf fall to happen without notice but that was not something that had occurred in his experience. 107 In his evidence Mr Milner asserted that there was no risk of a higher and more regional fall of roof as 'the conditions just weren't lending themselves to that.' In response to questions from Mr Baldwin's counsel he said that he had observed higher and more regional goaf falls of the kind described by Professor Galvin in the other two inbye compartments of 519 Panel, where the men were working before the shift in which the accident had occurred, which he described: … most of them hung up for a while and slowly deteriorated and then came in slowly. The time gap varied, but was hours and shifts. 108 Mr Milner, however, conceded the possibility that a goaf fall could occur without warning, although the concession was made in the context of a general proposition that was put to him and not in the context of what occurred at 519 Panel. 109 Counsel for Mr Baldwin contended that assuming what Mr Milner said was considered as a theoretical possibility (without accepting the correctness of the assumption) and even taking this possibility into account with what Professor Galvin said, such evidence was incapable of establishing to the criminal standard on 20 December 2000 the existence of a risk in the form of a goaf fall, namely, a higher and more regional fall of roof. It was submitted that the appellant never negatived as a reasonable possibility the concessions of Dr Seedsman and the specific evidence of Mr Milner as to the actual state of the goaf in the subject place of work. It was submitted that: [T]he roof behaved as planned and therefore the prosecution has not proved beyond reasonable doubt the goaf fall risk. Specialised knowledge evidence that precludes its proof includes (with references to the evidence): · such a goaf fall did not materialise or manifest itself in the approximate two and half hours left on the charge date after the accident occurred at about 9.30 pm (Mr Milner); · it took hours and shifts before the roof slowly deteriorated; it wasn't like a sudden collapse of a huge area of ground. This was something imposed on the mine well in advance of the accident by the dam safety committee (Mr Milner); · it is part of partial pillar extraction planning that there would not be a quick fall of the goaf (Mr Milner); · the immediate roof when you remove the coal does not necessarily fall down immediately. There can be a period of time and particularly an additional increase in the span before that roof falls (Dr Seedsman); · apart from the local shallow fall, the roof was acting in the way planned (Mr Milner): · the lower slab collapsed and the main part of the rock over burden was still in place and the panel and pillar layout performed or behaved as required by the design. There was nothing unexpected or unanticipated about the behaviour of the roof (Dr Seedsman); · nor did such a goaf fall materialise or manifest itself before or, even up until the RCCM [remote controlled continuous miner] was retrieved on 23 or 24 December 2000 (Mr Milner); · the conclusions of Mr Milner are sound and not subject to legitimate challenge: Q. In your opinion, based on your prior involvement in the section 31 A ( sic – 138) application, reading reports provided by Drs Shepherd and Seedsman, your own observations of the panel and what you saw at 3am on 21 December 2000, is it your opinion there was no risk in the time between 9.30am until midnight on 20 December 2000 - sorry, 9.30pm until 12 midnight, there was no risk of a higher and more regional fall of roof defined by Dr Galvin as a goaf fall? A. No, no way. Q. Why? A. The conditions just weren't lending themselves to that. 110 Dr Seedsman was a witness for the appellant. His qualifications were not in issue. The appellant's examination-in-chief elicited the following from Dr Seedsman: Q. I ask you one further matter that relates to the second of the reports that we are seeking to tender…. You made reference in the first paragraph 4.4, in the centre of that first paragraph, I read it, you say this, "The first goaf fall occurs at about 50 metres of retreat." You offered that as an introductory remark in respect to cave in wind blasts and the like. So I ask you this: From where did you gain the information or the opinion perhaps that goaf falls occur at about 50 metres of retreat? A. My observations of the initial retreat of the long walls, discussions with Mr Milner and other people at the mine as to when the first fall would occur, and some consistency with some analysis of the mine that I have done. Q. Could you give a brief explanation of what that lines-- A. What this means? Q. --that line that I read to you? A. The immediate roof - when you remove the coal the immediate roof does not necessarily fall down immediately. There can be a period of time and particularly an additional increase in the span before that roof falls. 111 After establishing that Dr Seedsman attended the accident site on the morning of 21 December 2000, the respondents' cross-examination elicited the following: Q. If you are able to recall, but if you can't say so, based on your observations there was no indication of cave in goafing related to the failure of the overlying strata? A. What I did observe was that it was only that lower slab that had collapsed and that the main part of the rock over burden was still in place. If that helps. Q. You have already explained that you understood Dr Shepherd was involved in the layout of the partial pillar extraction and the sequencing, do you remember giving that evidence? A. Yes, I do. Q. Based on your observations at this particular visit, did you assess that the panel and pillar layout was not a contributor to the incident? A. Could you repeat that? Q. Certainly. Based on your observations at this visit, did you assess that the panel and the pillar layout was not a contributor to the incident? A. I guess my assessment was that the panel and pillar layout as performed as the overall performance was as required to achieve the subsidence impact, so it was behaving as I thought it would. 112 The appellant's re-examination followed: Q. You were asked a series of questions about the panel and pillar layout and your response to that was they appeared to be behaving as I had thought or anticipated? A. That's correct. Q. I wonder if you could indicate how did you anticipate that they would behave? A. That comment relates to more of what is on this plan than is shown. It relates to the lack of distress being shown by the pillars along the side of the roadways as I walked in and the nature of the cave in that I could deduce from where I stood in terms of the behaviour of those immediate roof bolts. … Q. Was there anything unexpected or unanticipated about the behaviour of the roof that you observed in that area? A. No. 113 Further, counsel for Mr Baldwin noted Mr Rowles' evidence that in the 519 Panel area of the mine there was never a complete cave-in of the goaf before the accident. And further, that Mr Baldwin attended the site about 24 hours after the accident and there was, to his observation, no evidence of the type of goaf fall described by Professor Galvin. 114 It may be seen there is seriously conflicting evidence in relation to the possibility of a wider goaf fall. Mr Milner obviously gave instructions about the procedure for recovering a stranded CM under unsupported roof on the basis of his belief that the roof was acting in the way it was planned under PPE and that if the goaf was to fall there would be a warning. Mr Milner's evidence was that he had never experienced a goaf fall without there being pre-warning. He did concede, however, the possibility of a fall without any warning, but we do not consider that concession went so far as to negative his evidence that there was no risk of an unexpected goaf fall in 519 Panel because the roof was behaving as expected and the conditions did not lend themselves to an unexpected fall. Dr Seedsman's view tended to support that of Mr Milner to the extent that the roof was behaving as it was expected to, although it could not be said that Dr Seedsman's evidence was precisely to the effect that there was no risk of a goaf fall. On the other hand, there was evidence, including statistical material, that a goaf fall could, and had, occurred without warning. That evidence, however, was of a general nature and did not relate specifically to 519 Panel; it did not take into account the history of roof behaviour at the mine, geological conditions in 519 Panel, the PPE design or the actual experience with how the goaf behaved before and after the accident. In so far as the statistical material was concerned, there was no analysis of the incidents where a goaf fall had occurred without warning. 115 It was necessary for the appellant to satisfy the Court that it was beyond reasonable doubt that a goaf fall risk existed on the charge date of 20 December 2000. The primary judge was not so satisfied. 116 We are in no position to conclude otherwise. In light of the evidence of Mr Milner and Dr Seedsman concerning the behaviour of the roof in 519 Panel, that it was behaving as expected and the conditions did not lend themselves to an unexpected fall, and the absence of specific contradictory evidence in that respect, it cannot be concluded beyond reasonable doubt that there was a risk of a goaf fall occurring at any moment without any warning during the afternoon shift on 20 December 2000. Therefore, if that risk is not established to the requisite standard, the charge that there was not a SWP in place to deal with that risk cannot be made out. 117 Ground 39 of the amended appeal asserted that '[h]is Honour erred in finding that there was no evidence of a risk of a goaf fall'. What Haylen J actually found was that 'there was no evidence of a risk of what can only realistically be described as an unexpected goaf fall' and '[t]here was no evidence of a likely goaf or wider general fall, even shortly after the accident'. There is no basis for the Full Bench to take a different view. CATEGORY C APPEAL GROUNDS 118 Category C grounds included grounds 39, 40 and 47 (no evidence of risk of goaf fall) and grounds 53 and 54 (no evidence that crew lacked qualification to determine Continuous Miner rescue methodology). 119 We have already dealt with the proposition that Haylen J erred in finding there was no evidence of a risk of a goaf fall. 120 Grounds 53 and 54 were in the following terms: 53. His Honour in using the term "task" to mean determining the methodology to be used to recover a continuous miner misdirected himself in holding that there was no evidence to support a finding that the men in the afternoon shift crew lacked qualification and seniority to undertake that task; Prof Galvin having given evidence of that matter. 54. His Honour's finding at [283] as to training and qualifications contains errors in that there was direct evidence of the experience of the crew substantially in accord with the assumptions of Prof Galvin made for the expression of his opinions, and as Prof Galvin had expert knowledge of the respective competencies of statutory mining officials and gave evidence thereof. Particular (k)(iv) 121 The foregoing grounds related to the fourth particular of the charge, namely: (k) The company failed to provide or maintain systems of work that were safe and without risk to health and failed to provide such information, instruction and training as was necessary to ensure the health and safety of its employees in that it: … (iv) Permitted employees without appropriate seniority and qualifications on 20 December 2000 to determine the methodology for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. 122 In relation to grounds 53 and 54, those parts of the primary judge's findings attacked by the appellant were [276] and [283] where his Honour found there was no evidence to support a finding that the crew were lacking in qualification or seniority to undertake the task of recovering a stranded CM under unsupported roof: [276] In relation to the prosecution case, the issue then arises as to whether it can be said that the men were not trained or competent in the decision-making involved and adopted a procedure devised for a significantly different mining environment. The evidence shows that the crew, quite deliberately according to Mr Milner's evidence, was one chosen to blend skills and experience. The crew involved in this incident comprised a number of men who had some pillar extraction experience although it was readily conceded that experience needed to be updated and that was the purpose of the presentation given by Professor Hebblewhite and Dr Shepherd on 27 and 28 November 2007. Mr Rowles had approximately two year's pillar extraction experience four or five years before the accident but had no partial pillar experience or experience of recovering a continuous miner. Mr McAlary had long experience in the mining industry and ten years' earlier had pillar extraction experience. He had experience of recovering a continuous miner in the cut and flit process approximately six or seven months before the accident but had no experience in recovering a continuous miner in pillar mining. Mr Monk had 15 to 20 years' mining experience and had three or four months' experience with pillar extraction mining quite some time earlier. Mr Pearce had ten years' experience in the coal mining industry but had no previous experience in partial pillar extraction and had not previously recovered a continuous miner at the Bellambi West Mine. Mr Zgorzelski had 20 years' experience in the mining industry and had experience in pillar extraction in three mines. Mr Fraser had long experience in the coal mining industry and had approximately 12 months' previous experience in pillar extraction mining. All the crew had attended the presentations by the University of New South Wales. Given that the mining processes were different, but that the crews had been instructed in the new method and had also been instructed by Mr Milner (in the ways described above), there is no analysis in the evidence as to the way in which this crew with their combination of mining experience, the University of New South Wales presentation, toolbox talks and ongoing instruction were not competent to perform this task. It has been previously referred to that Inspector Barraclough regarded the men as competent in relation to timber propping and carrying out the work on the day and that in a Departmental record, senior Department officials had made the observation that, at the time of this incident, the miners and Mine Deputy were competent to undertake the task of the recovery of the continuous miner. The evidence discloses that the placement of timber props was part and parcel of the usual duties of a competent miner and was part of the skill set that permitted them to work underground. All crew members were capable in this task and the timber props chosen were able to bear the weight of these falls. … [283] There is simply no evidence to support a finding that the men were lacking in qualification or seniority to undertake this task. There is no analysis of their actual training to identify omissions nor is there any analysis of the training of the Under-manager as to why that person was more appropriate and better qualified to make the decision as to how to support the roof in a rescue exercise, and to make that decision to the exclusion of the Deputy or the crew. The recovery method approved by the Mines Inspector allowed these steps before raising particular circumstances where the Under-manager should be involved. Again, the prosecution case relies upon the evidence of Professor Galvin, itself being based on a number of assumptions. In part, the defendants again point to the observations made by the Assistant Director Safety Operations and Chief Inspector of Coal Mines and the Director, Mine Safety and Environment in February 2003 noting that the Coal Mines Regulation Act and the Coal Mines (General) Regulation contained requirements that dealt with hazards to employees through competency certification of mining officials, management structures and directions to deal with those hazards. As previously stated, the memorandum stated that certified mine deputies were competent to exercise the safety responsibility that was required in the circumstances of this particular accident and that the activity they were involved in was a "basic one well within the competence of a miner as well as a Mine Deputy". It was pointed out that a person may put in new roof support to make a place safe for any reason, not only to make a place safe to recover machinery that had stopped for a particular reason. 123 In his Report, Professor Galvin opined: i... The persons to whom the decision making was left were not trained or competent for the circumstances that confronted them… … viii... The crew lacked adequate guidance from an undermanager or more senior mining official as to how to recover the immobilised CM from the pillar extraction lift… 124 Professor Galvin elaborated in his oral evidence: Q. And if the mine manager had given toolbox talks on sounding the roof and barring it down and had also said, in circumstances when recovering an immobilised miner, that the option of the Fletcher bolting should be considered; if those directions had been given, the mine manager then had done what humanly could be done to prevent this accident from occurring? A. No, I don't fully agree with that. You've got to take into account the crew and the role of the deputy. They've got to be given some direction, some working procedures, some criteria how they go about taking a job. This was quite a critical situation they were faced with, and I think it fell above the deputy to evaluate what they were doing and then select the combination of options that you're putting to me, to then go forward. … Q. Professor, the question, then, is this: In your assessment, in matters which you have identified as appropriate to take into consideration in respect of the situation on 20 December 2000, are they within the competence of a deputy, competent deputy? A. Generally not, no. 125 As the appellant submitted, his case was that there was a 'systemic shortcoming' where persons of the level of a deputy or production co-ordinator were permitted to make decisions as to the methodology for the recovery of an immobilised CM in PPE without consultation with more qualified personnel. It was not the appellant's case that a deputy or other miner was not qualified to undertake individual tasks of setting timber props or sounding or barring the roof. 126 The primary judge sought to deal with this 'systemic shortcoming' submission at [250]-[252] and [254]-[257] of his judgment. Haylen J noted, correctly, the appellant's contention that the Mine Deputy and the crew did not have the training and skills necessary to undertake an appropriate risk assessment and to develop a method of rescuing the CM such that the safety of the crew was ensured and that the exercise should have been controlled by at least the Under-manager or someone higher in the managerial ranks. However, in relying particularly on the evidence of Inspector Barraclough and a departmental minute written by the Assistant Safety Operations and Chief Inspector of Coal Mines and the Director, Mine Safety and Environment in February 2003, his Honour rejected the appellant's contention: [250] The difference that emerged in the evidence as to an appropriate procedure for partial pillar extraction was Professor Galvin's view that a detailed, almost step-by-step, method had to be provided to a crew faced with the task of rescuing a stranded continuous miner from under unsupported roof. While Professor Galvin accepted that the miners were sufficiently trained and skilled to make an assessment of the roof, to sound it and if necessary to bar it down, the nature of the goaf area was such that he was of the view that, ultimately, the crew including the Deputy, were not sufficiently skilled and trained to undertake the task themselves and that the exercise should be controlled by at least the Under-manager or someone higher in the managerial ranks. Professor Galvin did accept that situations could vary widely with the isolation of a continuous miner and because every circumstance had to be separately considered, it would not be possible to present a step-by-step method applicable to all situations or to provide a number of such safe work practices dealing with the number of variations likely to be faced. The Professor was of the view that a number of steps could be laid down but ultimately, to ensure the safety of the miners, the rescue exercise had to be conducted under the guidance and in some circumstances, under the direct control of someone above the rank of Mine Deputy. His frank assessment was that, in relation to this incident on 20 December 2000, the Mine Deputy and the crew did not have the training and skills necessary to undertake an appropriate risk assessment and to develop a method of rescuing the continuous miner such that the safety of the crew was ensured. [251] Professor Galvin's view in this regard was not supported by other evidence. Mr Barraclough, an Honours graduate with an extensive history in the mining industry and an Inspector in the region, was of the view that the tasks involved in the rescue of this miner were well within the capabilities and training of the crew under the direction of Deputy McAlary. Sounding and barring down of the roof and using timber props was a normal part of the work of a miner who had been certified as competent to follow that calling in underground work. Similar views were expressed by the company's training officer, Mr Murray. In February 2003, the Assistant Safety Operations and Chief Inspector of Coal Mines and the Director, Mine Safety and Environment expressed the view that certified mine deputies were competent to exercise the safety responsibility that was required in the circumstances of this accident. The activity of installing new support was well within the competence of a miner as well as a Mine Deputy. It was also noted that new roof support could be installed for safety for any reason and not only for the retrieval of a continuous miner. Ultimately, no issue arose as to the capacity of these two officials to give such an opinion. [252] The prosecutor relies on this evidence of Professor Galvin and the fact that the method of retrieval approved by the Mining Inspector after the accident involved a role for the Under-manager as demonstrating the omissions from the company's system of work that led to crews being exposed to the risk of a roof fall while rescuing a continuous miner. The defendants point out that the method approved by the Mining Inspector was undertaken with the benefit of hindsight and was one where there were aspects with which the company did not agree - in particular, it was not accepted that there was a necessary role for the Under-manager to take control of a rescue nor was it accepted that the Deputy and his crew were not sufficiently trained and skilled to conduct an appropriate risk assessment and to devise a safe method of rescue having regard to the site circumstances then being faced. In particular, Mr Milner stated that he had quite deliberately over-supported the roof around the continuous miner after the accident because of a concern that many people would come to the scene who were unfamiliar with mining practices and who might inadvertently do things that could put them at risk. Quite a number of people had attended the site including persons who had previously never been underground. … [254] Another difficulty arises with Professor Galvin's evidence. The system of competency tickets qualifying miners to hold certain positions, including Mine Deputy, results in the day-to-day operations of a mine being able to be conducted with a Deputy being given a particular role to constantly consider the state of the walls and the roof and to consider issues of safety during the course of the shift. There was no analysis in the evidence as to what was lacking in the training of a Deputy (quite apart from Mr McAlary's training) that resulted in a Mine Deputy being inappropriately informed, trained and skilled to conduct a risk assessment and incapable of establishing a safe method for the retrieval of a stranded continuous miner from under unsupported roof. There was no analysis of the training of a Under-mine Manager or persons higher in the hierarchy to demonstrate that their training and experience would be so superior to that of a Mine Deputy that, generally, only people at that level should control the rescue of a stranded continuous miner. No such suggestion was put directly to Mr Barraclough, a person with both high academic qualification and practical mining experience, nor was it put to the crew members who gave evidence. Without such analysis, the proposition is difficult to accept when considering questions of the means by which the safety of the men was to be ensured when engaged in the rescuing of a stranded continuous miner. The proposition has some echoes of a line of reasoning rejected over a long period of time in occupational health and safety prosecutions that the simple answer to a workplace risk was the addition of another layer or layers of supervision. In structuring a safe system of work the focus is on ensuring the safety of employees but the Act itself recognises the practicalities of the workplace and does not seek to establish perfect systems in a perfect world. As desirable as that outcome might be, that is beyond the requirements of the Act. [255] Mr Gardner, the Chief Inspector, did not give oral evidence in the proceedings but part of a statement previously made by him was, by consent, entered into evidence. Mr Milner's evidence was that it was the Chief Inspector's requirement that the safe working practice was to include the giving of a controlling role to the Under-manager in the rescue of a stranded continuous miner. There was no evidence as to why the Chief Inspector thought that was either appropriate or necessary. [256] The terms of the approved safe work practice, in any event, on closer examination do not require, in all circumstances, an overriding and controlling role for the Under-manager. The procedure adopted required the Deputy and the Co-ordinator to be notified by the crew of the immobilisation of the continuous miner. The Deputy, the Co-ordinator and miner driver were then to jointly inspect and assess the area and develop an appropriate method of support and a recovery method. The group was to decide whether bolters or props were to be used in accordance with the support rules. The Deputy was to have the final statutory responsibility as to the type of support and the method of recovery to be used. The Deputy was to notify the Under-manager before commencing work and inform that person of the action to be taken. The recovery exercise would commence immediately after the toolbox talk was completed - the Deputy was to conduct the toolbox talk with the whole crew and discuss the method of support and recovery. The Panel Deputy had full statutory control of the operation unless identified circumstances arose where the Under-manager was to assume control. Crew members installing roof support were to sound and test the roof during all support operations. The Fletcher bolter, hand held bolters and/or timber props could be used as required. Minimum support requirements were laid down. Where a BLS unit was to be moved closer to the miner, the Under-Manager was to oversee the operation. Where the recovery took longer than one hour, the support and recovery method had to be re-assessed with the shift Under-manager to be informed. Thereafter, the Under-manager was to oversee the operation. Where plys of up to 300 mm had fallen, this procedure was to be followed but where in excess of 300 mm of plys fell, the Deputy was to inform the Under-manager and he was to oversee the recovery and develop an appropriate strategy for recovery…. [257] Another aspect to be considered is the fact that nobody, including Professor Galvin, had actually seen a documented safe work procedure of the type required by the Chief Inspector or spoken about Professor Galvin as being appropriate, or one with a requirement that an Under-manager or a person higher in the managerial structure should have control of the rescue of a stranded continuous miner. As earlier noted Professor Galvin, during cross-examination, did accept the necessity for flexibility in the procedures to be adopted in recognition of the many different situations that arose in the dynamics of mining and that, therefore, each circumstance had to be closely considered. Having agreed to that position, it is difficult to see how a position could then be reached that, in all circumstances, it was mandatory that an Under-manager or above had to be in control of the rescue exercise and the methods adopted and that there should be a detailed and documented safe work practice that could realistically meet all of the possible circumstances in which a continuous miner might have to be rescued. ... 127 The appellant contended that Inspector Barraclough did not give evidence that the safety issues that had arisen were well within the competence of the miners and deputy, nor did he say that no occasion had arisen requiring notification to the Under-Manager. The appellant further contended that Inspector Barraclough gave no evidence on the question of the capabilities and training of crews or deputies to undertake a risk assessment for the task of rescuing a CM stranded in a PPE goaf, nor their ability to develop a method for rescuing it. 128 As for the Departmental Minute, the appellant submitted Haylen J had misinterpreted the views expressed by the Departmental officials. It was submitted the officials, who were not called, were addressing the task of setting timber props, not of determining the methodology for a recovery operation. The sentence: 'This activity is a basic one well within the competence of a miner as well as a mine deputy' related to installing the new support referred to in the preceding sentence. This, it was submitted, was reinforced by the focus on 'a miner'. The appellant contended his Honour erred in construing the sentence as asserting that it was a basic activity for a miner to determine the methodology for recovery of a CM in the complex environment of pillar extraction mining. 129 The relevant part of the Departmental Minute was in the following terms: Implementation Action The current COAL MINES REGULATION ACT 1982 and Coal Mining Regulations 1999 contain requirements that deal with hazards to employees through competency certification of mining officials, management structure and directions to deal with hazards. Certificated mine deputies are competent to exercise the safety responsibility that was required in the circumstances of this accident. The accident occurred when a piece of rock fell while new support was being installed. This activity is a basic one well within the competence of a miner as well as a mine deputy. A person may put in new roof support to make a place safe for any reason, not only to make a place to recover machinery that has stopped for a particular reason. 130 Inspector Barraclough was questioned about the Minute. In cross-examination by counsel for Mr Baldwin the following exchange occurred: Q. At the coronial you were asked this question, this is in relation to the minute and in particular that extract you have just read out [that is, the extract above] but, "In the circumstances of this accident this is the considered statement by the most senior responsible officer in the department that in the circumstances of this accident that a mine deputy was competent to exercise the safety responsibility that was required, do you agree"? And you answered, "I agree"? A. I have no direct recollection of it but if that's in the transcript that's what I said, I agree. Q. …and you were asked then this question, "And it goes on by way of further explanation the accident occurred when a piece of rock fell while the new support was being installed. This accident was a basic one well within the competence of the miner as well as a mine deputy" and you answered, "Yeah, that's what it says"? A. Again, same answer, I have no direct recollection of my words but, if that's the transcript, that's what I said. Q. "Q. And that you would agree suggests that the circumstances of this accident do not generate any proposition that it was necessary to notify the under manager" and you answered, "I agree, that's what is indicated in the document, yes"? A. Again, if that's the transcript, that's what I said. 131 Inspector Barraclough was shown the relevant transcript of the coronial proceedings and agreed it was a true and correct record of the questions asked and answered by him. 132 Inspector Barraclough's evidence is somewhat ambiguous. However, it is reasonably apparent that the Inspector agreed with the proposition that: (i) certificated mine deputies were competent to exercise the safety responsibility that was required in the circumstances of the incident that occurred on 20 December 2000. 133 It is less clear whether Inspector Barraclough agreed with the following propositions because it appeared he was simply agreeing with the proposition that is what the Minute stated: (ii) the circumstances of the incident did not make it necessary to notify the under manager; (iii) installation of new roof support was a basic task well within the competence of a miner as well as a mine deputy; and (iv) a person may put in new roof support to make a place safe for any reason, not only to make a place to recover machinery that has stopped for a particular reason. 134 However, in relation to proposition (ii), as Inspector Barraclough had agreed that certificated mine deputies were competent to exercise the safety responsibility that was required in the circumstances of the incident that occurred on 20 December 2000, it would seem to be inconsistent with that concession that the Inspector would disagree with the proposition that the circumstances of the incident did not make it necessary to notify the Under-manager. On the other hand, the recovery procedure implemented after the incident, and which Inspector Barraclough, in effect, approved, required the Under-manager to be notified. 135 In relation to propositions (iii) and (iv), further questioning of Inspector Barraclough indicates that he, in fact, did agree with them. In any event, there does not appear to have been a real issue about the two propositions. 136 In our opinion, the only support for the respondents' defence of their position in relation to particular (k)(iv) that the Departmental Minute and the relevant evidence of Inspector Barraclough offers is that 'Certificated mine deputies are competent to exercise the safety responsibility that was required in the circumstances of this accident' and that the activity of installing new supports is a basic one well within the competence of a miner as well as a mine deputy. The primary judge was not correct in finding at [224] that Inspector Barraclough had described the accident as 'a basic accident well within the competence of the miners as well as the mine Deputy'. Nor was his Honour correct in finding that Inspector Barraclough had confirmed that '[t]here was nothing about the circumstances faced by the miners that made it necessary to notify the Under-manager.' 137 The question, therefore, is where those errors leave the allegation in particular (k)(iv) that the company permitted employees without appropriate seniority and qualifications on 20 December 2000 to determine the methodology for the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. 138 The finding by Haylen J at [251] that the tasks involved in the rescue of this miner were well within the capabilities and training of the crew under the direction of Deputy McAlary, was reasonably open to his Honour on the evidence. Inspector Barraclough's evidence and the Departmental Minute clearly support that finding. The appellant's contention focused rather on the proposition that 'the exercise should be controlled by at least the Under-manager or someone higher in the managerial ranks than the Mine Deputy' because the crew did not have the training and skills necessary to undertake an appropriate risk assessment and to develop a method of rescuing the continuous miner such that the safety of the crew was ensured. That was the opinion of Professor Galvin. The appellant also relied on the fact that the method of retrieval approved by the Mining Inspector after the accident involved a role for the Under-manager, thus demonstrating, it was contended, that the omissions from the company's system of work led to crews being exposed to the risk of a roof fall while rescuing a CM. 139 Professor Galvin's expert opinion lacked support, notwithstanding that the primary judge misconceived Inspector Barraclough's evidence. As Haylen J found in his judgment: (i) there was no analysis in the evidence as to what was lacking in the training of a Deputy (quite apart from Mr McAlary's training) that resulted in a Mine Deputy being inappropriately informed, trained and skilled to conduct a risk assessment and incapable of establishing a safe method for the retrieval of a stranded CM from under unsupported roof; (ii) there was no analysis of the training of an Under-manager or persons higher in the hierarchy to demonstrate that their training and experience would be so superior to that of a Mine Deputy that, generally, only people at that level should control the rescue of a stranded CM; (iii) the method approved by the Mining Inspector for recovery of the stranded CM after the incident was undertaken with the benefit of hindsight and was one where there were aspects with which the company did not agree - in particular, it was not accepted that there was a necessary role for the Under-manager to take control of a rescue nor was it accepted that the Deputy and his crew were not sufficiently trained and skilled to conduct an appropriate risk assessment and to devise a safe method of rescue having regard to the site circumstances then being faced; (iv) the Assistant Safety Operations and Chief Inspector of Coal Mines and the Director, Mine Safety and Environment expressed the view that certified mine deputies were competent to exercise the safety responsibility that was required in the circumstances of this accident; (v) the terms of the approved safe work practice adopted following the incident did not require, in all circumstances, an overriding and controlling role for the Under-manager; (vi) Mr Gray-Spence, the Deputy Mine Manager, stated that Mr McAlary was a qualified Deputy, had experience and had been 'signed-off' in that role. Mr McAlary had worked on the Panel for a while and was 'an intelligent man' and they were doing many risk assessments. 140 These findings were open to his Honour. Moreover, there is merit in the respondent's contention that the opinion of Professor Galvin that the recovery of the stranded CM should have been controlled by at least the Under-manager or someone higher in the managerial ranks than the Mine Deputy did not go beyond a bare ipse dixit (a label given to a statement asserted but not proved). 141 Counsel for Mr Baldwin referred to R v Hien Puoc Tang (2006) 65 NSWLR 681; (2006) 161 A Crim R 377; [2006] NSWCCA 167, where Spigelman CJ (with whom Simpson and Adams JJ agreed) said: [153] In Makita, Heydon JA posed a series of questions about the evidence in that case, including: [87] … Did [the report] furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit ?" [154] The three opinions of Dr Sutisno in the present case do not, in my view, go beyond a "bare ipse dixit ". Dr Sutisno did not identify the terms of the "strict protocol" that she purported to have applied, nor did she set out the basis on which the "protocol" was developed. Indeed, she said that this information was confidential, because of what she described as a "process of patenting my innovations". Accordingly, she had not published any of these "innovations". The critical matter is that she did not identify her "protocol" or explain its basis. 142 Reference was also made to R v Jung [2006] NSWSC 658 where Hall J relevantly said at [60]: Specific principles determining admissibility of expert opinion evidence [60] The analysis undertaken by Heydon, JA. (as he then was) in Makita (supra) contains reference to a number of authorities in relation to the common law principles applicable to expert opinion evidence. The following propositions, as stated by Heydon, JA. and found in those authorities, state the principles that apply and govern the admissibility of expert opinion evidence: (a) The duty of an expert is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of his or her conclusions, so as to enable the judge or jury to form their own independent judgment by the application of such criteria to the facts proved in evidence: Davie v Lord Provost, Magistrates and Counsellors of the City of Edinburgh (1953) SC 34 at 39-40 per Lord President Cooper. (b) The bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised: Davie (supra). … (j) Not only must the appropriate information be supplied, but the expert must reveal the whole of the manner in which it was dealt with in arriving at the formation of the expert's conclusions: Heydon, JA at 740. … (n) A trial judge is not bound to accept an opinion expressed by an expert particularly where it was on ultimate issues: Brodie v Singleton Shire Council (2001) 75 ALJR 992 at 1060 [355] and Heydon, JA at 748. (o) It is possible for one expert to adopt statements in scientific works as part of his or her own testimony, but bear references to particular propositions carrying no weight unless their basis is explained: per Heydon, JA. at 745. 143 Given that the appellant must prove particular (k)(iv) beyond reasonable doubt, it is simply not open to find, largely on the basis of Professor Galvin's opinion, that the company permitted employees without appropriate seniority and qualifications on 20 December 2000 to determine the methodology for the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. CATEGORY D APPEAL GROUNDS 144 The category D appeal grounds attacked a multitude of findings made by the primary judge. 145 Ground 6 asserted that his Honour erred in regarding the evidence of Mr Milner as definite and specific instructions for rescuing a stranded CM. This ground appears to be directed to the toolbox talk given by Mr Milner on 24 November 2000. This ground has been adequately dealt with in our earlier consideration of the second particular. 146 Grounds 18, 19 and 20 we have already dealt with. These grounds concerned his Honour's findings regarding the evidence of Inspector Barraclough and the Departmental Minute in connection with the role and competency of miners and mine deputies. 147 Grounds 26, 35, 37, 43, 44 and 45 contended that the four particulars of the charge had not been made out. We earlier dealt with particulars (k)(ii) and (k)(iv) and we have nothing to add in that respect. Particular (k)(i) 148 Particular (k)(i) alleged that the company failed to undertake an assessment of the risks associated with the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. In his opening in the proceedings at first instance the appellant submitted in relation to this particular: The first particular is directed to the absence of a relevant risk assessment at any time before the accident occurred. The first defendant had undertaken a generic risk assessment that included recognition of risk associated with recovery of a continuous miner only where immobilised by rock fall and had initiated toolbox discussions in June and October 2000. It had not addressed in any formal manner the risks associated with recovery of immobilised continuous miner from under unsupported but still in place roof during pillar extraction and had not addressed the particular problems attending such an operation in circumstances of pillar extraction mining though the generic risk assessment had foreshadowed detailed risk assessment when pillar design was completed. No such detailed risk assessment had been undertaken as at 20 December 2000. 149 We note that the allegation was that the company 'failed to undertake an assessment of the risks associated with…'. That charge appears to have been amended to a slight degree in the appellant's opening address to the effect that there was a failure to undertake a formal or detailed assessment of the risk. The charge was not a failure to undertake an adequate risk assessment, but rather that there was a complete absence of a formal or detailed assessment of the risks associated with the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. 150 At [244] Haylen J referred to the fact that a risk assessment was undertaken in May 2000 by HMS Consultants as to the generic risks to pillar extraction mining and that a more detailed study would be required when the panel and pillar design was finalised. His Honour also noted that the report did not identify the risk associated with rescuing a CM stranded under unsupported roof, but dealt with what was conceded to be a more dangerous situation, the recovery of a buried CM. We dealt earlier with the incorrect finding that it had been conceded by the appellant that the recovery of a buried CM was more dangerous than recovering a stranded miner under unsupported roof. In that respect, however, we found the weight of the evidence supported a finding that it was more dangerous. 151 At [245] Haylen J dealt with what occurred in respect of the consultant's proposal of a more detailed study after the panel and pillar design was finalised: [245] ... The evidence of Mr Milner and the statement from Mr Murray was that, indeed, further steps were taken after the design was settled. Those steps, although accepted as not constituting a "formal" risk assessment, commenced with Professor Hebblewhite and Dr Shepherd providing an independent technical review in mid-November 2000 that was discussed with Dr Seedsman, the Department and its Mine Inspectors. The consultants' report accompanying the s 138 Application stated in the introduction that the Mine had undertaken a risk assessment on the proposed pillar extraction system "to identify and control roofs associated with this system". The mid-November 2000 report dealt with structural issues, extraction methods and the fault area but did not descend into detail regarding the process for recovering a stranded continuous miner from under unsupported roof. There were, however, a number of drafts of pillar extraction operating procedures discussed with Inspector Gardiner and some aspects were reviewed in this process. The operating procedures were reviewed with the further assistance of Dr Shepherd and, on occasions, with the assistance of Dr Seedsman. It appears no one suggested, in this review process, that a new or different approach was required for the recovery of a stranded continuous miner. On 24 November 2000, Mr Milner held toolbox talks during which he instructed the crews on the modified recovery method indicating that it would apply to both the cut and flit operation and the partial pillar extraction operation. Mr Murray stated that those talks constituted part of the more detailed study referred to by the consultants. That further study looked at a number of matters after the size of the pillars and the location of the roadways were finalised: other pieces of equipment were also considered. 152 At [246] Haylen J observed that: [246] The thrust of the prosecution case then seems to focus on the fact that there was no detailed procedure laid down as a result of a specific risk assessment that gave quite definite and specific directions to the crew as to how they were to go about the task of rescuing a stranded continuous miner. 153 At [248] the primary judge concluded there was no evidence to suggest the crew were unaware of the risks associated with retrieving a stranded miner from unsupported roof. His Honour then stated: [248] ... The issue then appears to involve a consideration of whether a more detailed and written method of rescue should have been established by the company and that also involves a consideration of what should constitute those detailed steps to ensure the safety of the miners when engaged in a rescue exercise under unsupported roof. 154 At [249] Haylen J discussed the risks in PPE mining and the 'previous systems of mining'. We have earlier addressed this paragraph of his Honour's judgment at length and found that his Honour had not misunderstood or misconceived the difference between longwall mining and PPE mining to the extent that it led him into error in making the findings he did at [249] of his judgment. 155 At [250] the primary judge described the appellant's position and, in particular, Professor Galvin's view that 'a detailed, almost step-by-step, method had to be provided to a crew faced with the task of rescuing a stranded continuous miner from under unsupported roof' and that 'the rescue exercise had to be conducted under the guidance and in some circumstances, under the direct control of someone above the rank of Mine Deputy.' 156 At [251]-[257] Haylen J explained why he considered Professor Galvin's view was not supported by the evidence. We have largely dealt with these paragraphs in our consideration of the fourth particular. At [258]-[259] his Honour stated: [258] In this particular case, Deputy McAlary discussed the recovery of the miner with Mr Rowles and Mr Aspinall. Mr Rowles had proposed propping out to the miner and Mr McAlary required two rows of props to be used. This is the type of discussion envisaged by the safe work procedure developed after the accident. The Deputy remained in control of the operation in accordance with his statutory responsibility and authority. The use of timber props was one of the available options under the subsequent safe work procedure and that system was adopted. The course taken by the 3 men at the time largely reflected the terms of the later developed SWP and the broad terms of the 1998 Guideline and assessment document. Unfortunately it is not know what options, if any, were discussed by Mr Rowles and Mr Aspinall prior to Mr McAlary joining them nor was it known what action, if any, was taken to assess the roof immediately outside of the bolted area, if the accident is the focus of consideration in these proceedings. As discussed earlier, however, this matter is to be considered on the broader basis of the particulars, the risks faced by a mining crew in recovering a stranded miner and the identification of the culpable acts or omissions of the company in failing to ensure the safety of the men. [259] Having considered all of these matters, the Court cannot be satisfied beyond reasonable doubt that the company failed to undertake an assessment of the risks associated with the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. The prosecution has therefore failed to establish the first essential particular. 157 In his submissions on the appeal, the appellant contended that an employer's duty under the OHS Act was to be pro-active in the identification of risks to the health and safety of its employees: Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84 at [66] as to the general significance of carrying out a risk assessment to the strict duty on an employer; and Newcastle Wallsend Coal Company Pty Ltd v Stephen Finlay McMartin [2006] NSWIRComm 339; (2006) 159 IR 121 at [339] for a relevant similarly-worded particular to that in the present case. 158 There can be no doubt there is an obligation upon an employer to search out and eliminate any risks to health and safety and one of the most effective means of doing this is to undertake a formally planned, structured, step-by-step risk assessment. In our experience very many employers, including those in the coal mining industry, have adopted such an approach. An improvised or unplanned and unstructured risk assessment has a greater chance of not identifying all of the risks associated with a particular undertaking. 159 It seems to have been accepted by the respondents in these proceedings that there was no formally planned, structured risk assessment in writing in place at the time of the incident on 20 December 2000 for recovery of a stranded CM under unsupported roof in PPE mining operations. Based on the evidence in these proceedings there should have been such a risk assessment conducted. The recovery operation, on any measure, was a dangerous operation and warranted a discrete, formally planned for and structured risk assessment. 160 That no such assessment was done, does not lead automatically to a finding that particular (k)(i) is made out. The question here is whether there was a complete absence of a 'formal' or 'detailed' assessment of the risks associated with the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. Even if that were established, the appellant would need to show that Haylen J erred in failing to find the absence of this assessment caused the risk. 161 It is not entirely clear what the appellant meant by a 'formal' assessment. Professor Galvin's March 2005 Report seems to have been the foundation for particular (k)(i) of the charge. In that Report the Professor opined that the risk assessment undertaken was deficient because the risks associated with recovering the CM were not identified in the risk assessment and that a 'more detailed risk assessment' should have been undertaken once the pillar extraction layout had been decided. Professor Galvin's opinion is in conflict with particular (k)(i) because the Professor accepts a risk assessment was carried out albeit the assessment was deficient. He suggested that a more detailed assessment should have been undertaken, presumably on the basis that it would have identified the risks that allegedly had not been identified in the assessment that had been carried out. 162 We think Professor Galvin was largely correct in his definition of a risk assessment. It is the process of identifying hazards, assessing the risks associated with those hazards on the basis of probability of occurrence and consequences of occurrence and identifying measures to eliminate or control the risks so that persons are not exposed to them. 163 The appellant's case asserted there were two relevant risks: a risk posed by the fall of a layer of sandstone thinly bedded in the roof to a depth of about 300mm; and a risk posed by the procedure that the crew had attempted to implement, namely, that a fall commencing anywhere within the goaf might engulf the aisle intended to be created by the erection of two rows of timber props. 164 There cannot be any doubt that there was an assessment of the localised shallow fall risk; we dealt with this earlier in another context. The crew were instructed on and were well aware of this risk and understood the measures that were necessary to avoid exposure to the risk. That could not have been the case if there had not been some form of assessment of the risk. There was no deficiency in the avoidance measures. The crew had been repeatedly instructed not to venture under unsupported roof under pain of dismissal; close inspection and sounding and barring down of the roof was a fundamental and longstanding requirement; Fletcher or hand held bolting or timber props or any combination were to be used to support the roof; the Deputy was competent to supervise the recovery operation, but if there was any uncertainty the Mine Manager was to be called. 165 We have also dealt earlier with the wider goaf fall risk, albeit in a different context, and found that the existence of the risk as charged had not been proven beyond reasonable doubt. Given that the existence of the risk had not been made out, no causal link between a failure to undertake a risk assessment and the risk could logically be established. If the risk of the wider goaf fall had been made out we would have had serious doubts about whether there had been a 'detailed' risk assessment. The assessment was an improvisation and it is eminently arguable that it did not take sufficient account of a wider goaf fall risk. 166 The primary judge did not err in finding that particular (k)(i) had not been made out. Particular (k)(iii) 167 Particular (k)(iii) of the charge alleged that the company failed in the context of pillar extraction coal mining operations to provide any, or any adequate, information and instruction to its employees for the recovery of an immobilised CM from under unsupported roof in pillar extraction coal mining operations. 168 The appellant's case at first instance was that the information and instruction given to the employees at risk was inappropriate to the circumstances of pillar extraction mining; it was not sufficient to leave it to the Deputy and the crew to determine the means of gaining access to the stranded CM; and whether and when to seek guidance or assistance from a more senior mining official. 169 It was submitted that the information and instruction given lacked the stringency called for by s 15 in that it failed to give appropriate guidance and direction to the employees concerned: Cullen v State Rail Authority of NSW (1989) 31 IR 207; Genner Constructions. 170 We do not consider the issue to be whether there was any relevant information and instruction. There was clearly information and instruction provided to the crew in connection with the recovery of a stranded CM under unsupported roof. The issue is rather whether the information and instruction was adequate. 171 The primary judge, of course, found that particular (k)(iii) had not been made out. In so finding Haylen J considered the evidence and submissions regarding particular (k)(iii) in the context of his findings that the appellant had not made out particular (k)(i) (risk assessment) or particular (k)(ii) (safe working procedure). 172 Further, it would appear from [274]-[281] of the first instance judgment, where his Honour dealt with the third particular, that he essentially accepted the respondents' contentions, which may be summarised thus: (i) The crew received relevant information and instruction in toolbox talks; (ii) The crew received recognised pillar extraction training from the University of NSW who were industry leaders in such training; (iii) A reasonable doubt must exist by virtue of the unchallenged evidence of a number of persons and in particular Mr Murray; (iv) The afternoon shift crew were all experienced miners and in particular in the tasks of inspecting, sounding, barring and temporarily supporting the roof. 173 In relation to the first contention, the appellant accepted that all crew attended the toolbox talk, but submitted the talk only lasted 20 minutes. Whilst the duration of the talk was relatively short that is not a proper basis upon which to find, beyond reasonable doubt, that the information and instruction imparted was inadequate. However, it is troubling that the recollections of the crew able to speak on the matter were quite vague about what they were told on 24 November 2000. For example, Deputy McAlary was shown as attending the toolbox talk but he had no recollection of doing so. That raises the question of whether the information and instruction imparted had the necessary impact on the crew. 174 In relation to the second contention, it was submitted no member of the afternoon crew attended the full day pillar extraction training by Professor Hebblewhite and Dr Shepherd on 27 November 2000. However, all members of the crew attended a separate two hour pillar extraction training session that day. A half day 'summary course' on pillar extraction on 28 November was attended by only Deputy McAlary and Mr Rowles of the afternoon crew. 175 Mr Milner's evidence about what he said at the toolbox talk on 24 November was given in examination-in-chief and in cross-examination. In examination-in-chief, the following exchange occurred: Q. Did you conduct a toolbox talk on 24 November 2000 addressed to each of the shifts? A. Yes, I did. That was a toolbox talk about pillar operating procedures. Q. Did you conduct that yourself? A. Yes, I did. Q. And for each of the shifts, where did you do it? In the crib room? A. I did it in the surface crib room or little training room with the aid of the whiteboard and overhead projector, and what I'd done was make clear overheads of the Pillar Extraction Operating Procedures so that I could project them onto the whiteboard and talk to it and actually draw diagrams and actually lead the men through the proper sequences. Q. So this was subsequent to Prof Hebblewhite's training course? A. Yes, it was. Q. And what was the purpose of it if they'd already been put through that training course with Hebblewhite and Shepherd? A. The intention of the Hebblewhite and Shepherd training was to give them a broad understanding of pillar extraction. Then they went into some detail. Now, the intention was to go into specific details for our colliery with our operating procedures. Q. During that talk and to each shift, did you cover the issue of the recovering of a stranded continuous miner? A. Yes, I did. Q. What did you tell the workers? A. I told the workers that if a miner became immobilised, obviously carry out their normal pre-inspections. Then have a look at the situation as it would be different, assess it, and then they could use the Fletcher roof bolter, handheld bolts or props or a combination of both, and that the minimum with any of the support was to create a safe work area. Q. Did you speak to them at all about sounding the roof or barring or scaling it down? A. Yes, I did. Q. What did you say? A. I told them before setting up, especially with the handheld bolter and the props, to sound the roof and if it was drummy, bar it down. I also went through a draft procedure of a buried miner and informed them if that situation occurred, that they were to stop and ring me at home. 176 In cross-examination the following exchange occurred: Q. I'm not talking about the document 5002A. I'm talking about whether or not you had developed a procedure for the recovery of mining equipment from dangerous locations. A. Yes. Q. Do I take it then that the starting point for the procedure for the crews at the mine for recovery of this particular stranded miner was the cut and flit document? A. No, it was the toolbox talk that I'd given to the men on 24/11. Q. What regard, if any, were they to give to the cut and flit written document of which you've spoken? A. Inspect the roof-- Q. I'm sorry-- A. Are you referring to that procedure? And in that procedure it refers to these things. Q. All right, so inspect the roof, yes. A. And they could use the Fletcher bolter, handheld bolter, and then I'd added props. Q. When you say "I'd added props", you mean you added props in the cut and flit document? A. To the cut and flit and to the lifting situation. Q. And do I take it then that so far as that which the crew had been advised, there was no difference between the procedures for recovery? Whether cut and flit or partial pillar extraction, the procedures were the same or not? A. The general procedures were the same, dependent on the conditions at the time. And as I said to the crews in all the toolbox talks, if they are unaware about anything they were to cease operations immediately. 177 Notwithstanding the vagueness of some of the crew's recollection about the toolbox talk on 24 November, Haylen J accepted that it had occurred and that Mr Milner's evidence as to what was said was to be accepted. At [242] his Honour stated: [242] Mention should be made at this point of the recollection of the members of the crew who gave evidence more than six years after this incident. Their evidence, understandably in the circumstances, was sometimes vague and sometimes denied certain instructions were given or that they attended certain toolbox meetings but there were other records that showed that they had attended certain of those talks. It is no criticism of them that, after such a length of time, they had no precise memory of the details of what took place in the months leading up to partial pillar extraction being adopted for mining at 519 Panel. It does mean, however, that it is unsafe to rely on that evidence to conclude that no instruction was given or that the instruction given was only for the cut and flit operation or that the only way to rescue the miner was by using timber props "two rows straight out, driver's side". On the other side of the coin was the evidence of Mr McAlary and Mr Rowles: both recalled the toolbox talks where recovery of a stranded miner was discussed and where the use of timber props was added to the use of bolters as an available alternative method of obtaining support during the recovery exercise. While Mr McAlary could not recall the toolbox talk held on 24 November 2000 by Mr Milner, Mr Rowles was able to recall substantial details, including instructions to take care, to consider all the circumstances and to understand that there would be different situations to be faced requiring careful judgment to be exercised. The task was not to be rushed and was to be performed safely, regardless of the time taken in the recovery exercise. [243] Importantly, there is no evidence of particularity and substance that calls into question the account given by Mr Milner as to what instructions he gave about the recovery of the continuous miner from under unsupported roof, including recovery in pillar mining. 178 On the evidence, those findings were reasonably open to his Honour. 179 It may be accepted, therefore, that the crew had been instructed on the 'mechanics' of the safe retrieval of a stranded CM under unsupported roof at the toolbox talk on 24 November 2000. It may also be accepted, given our earlier findings, that the crew was competent in the mechanical tasks (sounding, barring down, timber propping, etc) and understood that they were not to venture under unsupported roof. Professor Galvin's evidence, however, which was relied upon by the appellant, was that the crew were not trained or competent in the decision-making involved and adopted a procedure devised for a significantly different mining environment. 180 Haylen J sought to deal with this proposition, in part, at [276] where his Honour stated: [276] ... Given that the mining processes were different, but that the crews had been instructed in the new method and had also been instructed by Mr Milner (in the ways described above), there is no analysis in the evidence as to the way in which this crew with their combination of mining experience, the University of New South Wales presentation, toolbox talks and ongoing instruction were not competent to perform this task. ... 181 Further, at [281] Haylen J found: [281] In relation to the assumptions [by Professor Galvin] that the crew had no prior experience extracting coal pillars using a remote controlled continuous miner and three mobile breaker line supports, that none of the crew had previously been engaged in pillar extraction at Bellambi West Mine prior to December 2000 and that none of the crew had any former pillar experience for at least four years prior to 1 December 2000, those assumptions, although substantially correct, do not result in any analysis of what level of further training would qualify the men for the recovery task in pillar mining, having regard to their extensive experience in mining generally and for a significant number of the crew, the fact that they had at some time or another some experience of the pillar extraction method. Mr Milner's evidence was that the fundamental principles of pillar mining had not altered in 100 years. There was no analysis of the course presented by the University of New South Wales to suggest that training could not permit the crew to perform pillar extraction work, including the recovery of a continuous miner: further, Professor Galvin put aside issues of training because he was not aware of what was involved, including the University of New South Wales course content. There is no evidence to suggest that, when the men were certified to undertake this work in pillar extraction at 519 Panel from 1 December 2000, they were not qualified to do so. 182 As to the University course, we presume his Honour was referring to the two hour pillar extraction training session on 27 November because none of the crew attended the full day course but they all attended the two hour session. Mr Murray, the Training Coordinator, was not called by the appellant as a witness in the proceedings. However, the record of his interview with investigators was tendered by Mr Baldwin's counsel. Mr Murray's responses to a number of questions about the University course were as follows: Q. Starting off with a written procedure for recovery of an immobilised continuous miner from unsupported roof, as a training tool that would be used in conjunction with verbal training-- A. Yes. Q. With teaching skills, imparting of skills to people? A. Yeah, that was part of the Bruce Hebblewhite and the New South Wales University course, went into some scenarios that basically talked about some recovery options and with all the guys that went through. Q. So is it your understanding that that included a process for the recovery of an immobilised miner from a pillar lift? A. In general terms, not in specific Bellambi West terms. Q. But you say that that training would have covered that topic? A. Yes, I'm saying that that was topics that were covered in conversation during that course that the University of Sydney ( sic ) ran. 183 It was the appellant's submission that Mr Murray did not attend the two hour pillar extraction training session on 27 November. Counsel for Mr Baldwin, however, submitted: Common sense and logic supported that the Training Coordinator would know about the detail and specifics of the courses attended by the afternoon shift crew. If the appellant wanted to negative beyond reasonable doubt the statements of Mr Murray, the appellant should have called this material witness. The appellant did not do so. In any event, Mr Baldwin gave unchallenged evidence that the role of Mr Murray included: "The purpose for creating the position, I understood, was for training and safety of documentation and procedures." When this extract was read to Professor Galvin, the Professor gave the following evidence: Q. Now, you didn't take that into account, did you, in your report, that according to Mr Murray the topic was covered in Prof Hebblewhite's course? A. No. As I said to you yesterday, I tried to avoid taking any of those into account. Q. And you indicated yesterday to the effect that… you avoided the training issue, "It was something I could not express an opinion on"? A. Yes, I just didn't know the content, or the structure or how it was delivered or how it was assessed, to be able to express an opinion. 184 On the issue of whether the company had failed in the context of pillar extraction coal mining operations to provide any, or any adequate, information and instruction to its employees the evidence supports the following findings: (a) the afternoon shift crew attended a toolbox talk on 24 November at which Mr Milner explained the process for recovering a stranded CM under unsupported roof in pillar extraction mining; (b) the crew attended a two hour pillar extraction training course on 27 November conducted by the University of New South Wales; (c) according to the Training Coordinator, Mr Murray, the course 'went into some scenarios' in a general way regarding recovery of an immobilised CM from a pillar lift. This evidence was not negatived by the appellant; (d) there was no analysis of the course presented by the University of New South Wales to suggest that training could not permit the crew to perform pillar extraction work, including the recovery of a CM: further, Professor Galvin put aside issues of training because he was not aware of what was involved, including the University of New South Wales course content; (e) the crew were all experienced miners and in particular in the tasks of inspecting, sounding, barring and temporarily supporting the roof; (f) the crew were instructed on and understood the dangers of working under unsupported roof and understood they were not to do so; (g) the deputy, Mr McAlary, was competent to exercise the safety responsibility that was required in the circumstances of the incident on 20 December 2000; (h) there was no analysis in the evidence as to the way in which the crew with their combination of mining experience, the University of New South Wales presentation, toolbox talks and ongoing instruction were not competent to perform the task of recovering the stranded CM. 185 Having regard to the foregoing, there is no proper basis to find beyond reasonable doubt that the company failed to provide adequate information and instruction to its employees and, therefore, no basis to find that his Honour erred in relation to particular (k)(iii). Other Grounds 186 Ground 31 of the appeal alleged that his Honour erred in finding that the evidence did not disclose that the men were left to their own devices under the new mining method and therefore relied on the cut and flit method without assessing its suitability. We have already dealt with this ground in addressing the third subcategory of Category A. 187 Ground 36 alleged that his Honour erred in finding that it was not a safe assumption upon which to proceed that the Fletcher bolter was available. Further, such finding did not detract from the conclusions reached by Professor Galvin or from essential particulars alleged. It was asserted that the evidence indicated, rather, the inadequacy of any instruction or work procedure concerning the use of the Fletcher bolter. Further or in the alternative, it was asserted his Honour placed undue weight on this finding. Further or in the alternative, such a finding was inconsistent with the finding that the use of the Fletcher bolter was an option available to the crew. 188 Haylen J dealt with the issue of the availability of the Fletcher bolter at [280]: [280] Professor Galvin acted on the basis that the Fletcher bolter was present at the time of the accident but the evidence is somewhat equivocal on that point: Mr Rowles thought that the Fletcher bolter was unavailable because of a breakdown and Mr Fraser did not know if the Fletcher bolter was available on the day as it may have been suffering from a mechanical or electrical problem. On the other hand, Mr Milner simply stated that the Fletcher bolter was present some 30 or 40 metres from the site of the accident and although not usually used in pillar extraction, it was subsequently used to recover this continuous miner. In terms, Mr Milner does not say that the Fletcher bolter was operational on the day of the accident but there appears to be an assumption that it was but the evidence is no higher than that. In light of the unsatisfactory nature of this evidence, the assumption that the Fletcher bolter was available is not a safe assumption upon which to proceed. 189 His Honour correctly states the evidence regarding the availability of the Fletcher bolter. In light of that evidence we do not understand how it could be contended that it was beyond reasonable doubt the bolter was available at the relevant time. 190 Ground 38 alleged that Haylen J erred in finding that an analysis of the training and qualifications of the crew and/or of the Under-manager was called for in the context of the structure of statutory mining officials and the particulars alleged. We have dealt with this ground in our treatment of particular (k)(iv). 191 Ground 48 alleged that the primary judge erred in finding that a consultant's risk assessment of risks generic to pillar extraction coal mining together with subsequent measures undertaken by Allied Coal Pty Limited were sufficient to constitute an assessment of the risks associated with the recovery of an immobilised CM from under unsupported roof in the pillar extraction coal mining operations. Further, that his Honour failed to give any or any adequate reasons for preferring the evidence of Mr Milner to that of Professor Galvin as to the need and methodology for a risk assessment in relation to the recovery of an immobilised CM in pillar extraction operations. We dealt with this ground in our consideration of particular (k)(i). 192 Ground 49 of the appeal grounds alleged that Haylen J failed to give any or any adequate reasons for preferring the evidence of Mr Milner that skilled miners could detect whether there was to be a large goaf fall that allowed assessments to be made as to what action should or should not be taken in preference to the evidence of Professor Galvin, the history of goaf falls and the concession by Mr Milner that goaf falls could occur without warning. 193 At [253] his Honour stated: [253] It was submitted for the defendants that these factors significantly detracted from the proposition that the safe method of retrieval was that devised for the rescue of the continuous miner after this incident. There is some force in that submission even though it might be thought that support for the roof would be as effective for a working crew as for inexperienced persons coming to this part of the mine site. Mr Milner's evidence on this matter should be approached in a practical manner and I took him to be saying no more than, having regard to the serious accident that had taken place and the number of people who were likely to attend the site without having an appreciation of the dangers of mining, the fact that the roof was bolted to a much higher level of support and perhaps over a wider area as an over zealous precaution should not be indicative of that method being the only one that would ensure the safety of an underground working crew. His evidence has to be considered in the context of his experience that properly trained and skilled miners could detect, from the circumstances of the roof, whether there was to be a large scale goaf fall and that experience allowed assessments to be made as to what action should or should not be taken in a particular area (our emphasis). 194 The appellant had submitted that the opinion of Mr Milner that there would be sufficient warning of a goaf fall, should not have been accepted as an assessment of goaf fall risks. Mr Milner accepted that an unheralded goaf fall was possible. Mr Milner's opinion was limited to his own experience. Earlier in his evidence Mr Milner cited as a guiding principle the old mining adage "It's not the bad roof that gets you, it's the good roof". Reconciling this, he said it did not refer to goaves. The nature and extent of any warning of a goaf fall was not put to Professor Galvin in cross-examination. It was submitted that Professor Galvin's evidence suggested that if there were any warning of a goaf fall, the extent of the warning would be at best speculative. 195 In cross-examination, Mr Milner gave the following evidence: Q. And the cave in may take place without notice, do you agree? A. Not goaf falls, no. Q. Not goaf falls? A. No, the goaf works; you listen, you hear it, the roof speaks to you. Q. Every time, does it? A. Every time. If the goaf is coming in, the goaf will talk. Q. What about the "it's the good roof that gets you" theory; is it the good roof that is silent that gets you? A. That is not referring to goaf. Q. In any event, do you say that there is no risk of a goaf fall without you get adequate warning of some kind? A. Yes. Q. Always? A. In my experience at the mines that I have worked at, yes. Q. Is that what they taught you at mining school? A. That's what I learnt as years as a miner. 196 Mr Milner did accept, as a general proposition, that an unheralded goaf fall was possible. But that concession did not amount to establishing beyond reasonable doubt that in 519 Panel a goaf fall would occur without warning. It was open to the primary judge to prefer the evidence of Mr Milner over that of Professor Galvin for the reasons given earlier in relation to the risk of a wider or regional goaf fall. 197 Grounds 51 and 52 alleged as follows: His Honour erred in his interpretation (at [263], [269], [271] and [274]) of statements in evidence by Mr Gray-Spence and by Mr Murray. His Honour misdirected himself in finding (at [274]) that Mr McAlary gave similar evidence to Mr Murray on the subject of instruction by Prof Hebblewhite and Dr Shepherd. 198 In relation to Mr Gray-Spence, Haylen J found: [263] It is also of some significance that the Deputy Mine Manager Mr Grey-Spence stated that, for many years, pillar extraction had been performed without safe work procedures being documented for the recovery of continuous miners. Apparently, this position arose because the recovery of every miner was different and there needed to be a mini risk analysis on site in order to work out how to retrieve the miner…. … [269]… As already pointed out, Mr Grey-Spence had stated that, for many years, pillar extraction had been performed without documented safe work procedures as each situation was different and therefore there needed to be a mini-risk analysis conducted on site to assess the circumstances then present. … [271] It is significant that the substance of Mr Grey-Spence's evidence was not challenged or contradicted and that none of the experienced inspectors or experts were able to produce a detailed standard SWP for the recovery of a stranded continuous miner from under unsupported roof, especially in partial pillar extraction mining. 199 It was submitted for the appellant that the reliance placed by Haylen J on the statement of Mr Gray-Spence in [263] that 'for many years, pillar extraction had been performed without safe work procedures being documented for the recovery of continuous miners' did not provide any basis for his Honour's conclusion or purport to represent current best practice. The conclusion the appellant was referring to was 'therefore there needed to be a mini risk analysis conducted on site to assess the circumstances then present'. The appellant submitted Mr Gray-Spence's statement, 'for many years, pillar extraction had been performed without safe work procedures being documented for the recovery of continuous miners', taken in context, was a reference to the historical position. His Honour had incorrectly regarded that statement as the reason for undertaking on-site mini risk analyses, and by extension the justification for the absence of a written SWP. 200 The appellant submitted his Honour repeated the same proposition at [269], again assuming that the historical absence of SWPs was attributable to a present day practice. In doing so, it was submitted, his Honour erred. 201 The relevant question asked of Mr Gray-Spence and the answer he gave were in the following terms: Q. Were you concerned that pillar extraction had commenced prior to these procedures having been fully developed and the men trained in those procedures? A. For many years pillar extraction was done without safe work procedures to recover continuous miners. I have worked extensively in pillars. Each recovery of miner is very different and, as I said, you really need to do a mini risk analysis on site to work out how to get a continuous miner back out. 202 Our interpretation of Mr Gray-Spence's answer is that for many years there were no SWPs to recover CMs and that could be explained by the fact that each recovery is different. Because of the different circumstances arising in each case, what needed to be done was a 'mini risk analysis' on site. This is precisely how his Honour interpreted Mr Gray-Spence's statement. We see no error. His Honour was entitled to regard what Mr Gray-Spence said as being of some significance. It is unnecessary to deal any further with the evidence of Mr Murray in light of our findings regarding the particulars. NOTICE OF CONTENTION 203 Mr Baldwin filed a notice of contention in which he contended that the primary judge's decision should be affirmed on grounds that were relevantly set out in Part D of the notice: Sounding and barring or scaling down the roof Even on the findings made by Haylen J at J[229] – [235] that are favourable to the appellant, there was not negatived by the prosecutor as a reasonable possibility that there was an inexplicable failure by the afternoon shift to sound and bar or scale down the roof and, therefore, there could not be established to the criminal standard that a causal nexus was not broken between any alleged risk and failure. Haylen J at J[230] was mistaken that Mr Fraser said in his statement that he noticed scrape marks on the stone roof. His Honour at [98] did earlier make reference to Deputy McAlary confirmed that, when being questioned by Mr Sheehy, he stated that on arriving back to the face he looked at the roof and it had "quite a few pick marks along the roof" but these marks it is contended are explicable by the cutting action of the continuous miner. 204 As we have found that the primary judge did not err in finding that the relevant particulars of the charge were not made out and there were no other materially significant errors at first instance, it is unnecessary to deal with the Notice of Contention. ORDERS 205 The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeals are dismissed. (3) The appellant shall pay the respondents' costs of the appeal as agreed or assessed. __________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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