Industrial Court of New South Wales CITATION: Morrison v Perilya Broken Hill Ltd [2010] NSWIRComm 66 PARTIES: Rodney Dale Morrison (Prosecutor) Perilya Broken Hill Ltd (Defendant) FILE NUMBER(S): IRC 2372 of 2008 CORAM: Haylen J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - fatal accident in mining industry - remotely controlled loader crushes operator - plea of guilty entered to essential elements of offence but all particulars disputed - lengthy delay in resolving dispute over particulars - serious breach established - general and specific deterrence considers - substantial subjective factors - detailed safety system in operation - measures - adopted after accident caused operational problems - defendant converts to use of tele-remote loaders - tele-remote operation available at time of accident and being trialled by defendant - general deterrence - new operational method limits need for specific deterrence - first offender - co-operation with investigation of accident - contrition established - penalty imposed LEGISLATION CITED: Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001, cl 5 Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 Kirk and Anor v Industrial Relations Commission of New South Wales and Anor [2010] HCA 1 CASES CITED: R v Borkowski [2009] NSW CCA 102 R v Thomson; R v Houlton (2000) 49 NSWLR 38 WorkCover Authority v Denson and Ors [2007] NSWIRComm 69 HEARING DATES: 10 May 2010 DATE OF JUDGMENT: 25 May 2010 Mr D O'Neil of counsel (Prosecutor) Crown Solicitors LEGAL REPRESENTATIVES: Mr B Hodgkinson SC with Mr M Shume of counsel (Defendant) Sparke Helmore Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J Tuesday 25 May 2010 Matter No IRC 2372 of 2008 RODNEY DALE MORRISON v PERILYA BROKEN HILL LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2010] NSWIRComm 66 1 In May 2002, Perilya Broken Hill Ltd ("Perilya") controlled the Perilya Broken Hill Mining operation having acquired it from Pasminco. The Perilya southern operations mine was an underground silver, lead and zinc mine. In April 2006, Mr Jason Symonds commenced work with Perilya although from 2003 he had regularly worked at the mine as a contractor. Mr Symonds was selected as suitable to be trained to manually operate a mining loader, a large piece of mining machinery similar to but much larger than a front-end loader. The loaders were operated both manually and by what was described as " line of sight" remote operation. In June 2006 Mr Symonds obtained a training permit for manual operation of the loader and in late September 2006, obtained his manual loader operator's ticket. At the end of October 2006, he obtained a training permit for remote operation of the loader and by early December 2006, had obtained his remote operator's ticket. 2 On 9 January 2007, while working on the night shift and working alone, Mr Symonds was crushed to death by the remotely controlled loader he was operating. As a result of that accident and the following investigation, proceedings were commenced in this Court against Perilya alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000. 3 The Application for Order filed in late December 2008 provided three particulars of risk, with the third particular alleging five different failures by the defendant. By the time the matter came before the Court, not all the failures were pressed against the defendant and the particulars proceeded upon were as follows: 1. Employees were exposed to the risk of being struck by load haul dump machines whilst using line of sight remote controlled equipment. 2. Employees were exposed to the risk of being crushed by load haul dump machines whilst using line of sight remote controlled equipment. 3. It is alleged the defendant: ... (d) failed to provide appropriate engineering control so as to prevent workers from being able to move up to, alongside or past remote controlled loaders whilst they were operating and/or able to be operated. As a result of the said failure Jason Symonds' safety was placed at risk and he died. 4 The summons was returned before the Court in late March 2009 and on 12 August 2009, on the fifth occasion before the Court, the defendant entered a plea of guilty to the charge but did not accept the particulars relied upon by the prosecutor. In taking that approach, senior counsel for the defendant stated that the defendant accepted the essential elements of a breach of s 8(1) of the Act. The parties agreed to confer further in relation to the particulars and a tentative hearing date was set in December 2009. Further directions in the matter were vacated on two occasions but in late October 2009, the parties confirmed a hearing for December 2009. At the December 2009 listing, the prosecutor filed in Court an Agreed Statement of Facts and some annexures but because of continuing disagreements as to particulars, a three-day hearing was set down in March 2010. At the commencement of that hearing, the defendant acknowledge its acceptance, by the plea it had entered, of the particular specified in para 3(d) of the Application for Order. The prosecutor indicated to the Court that it did not press the other particulars. Senior counsel for the defendant indicated that the plea of guilty, although entered before the decision of the High Court in Kirk and Anor v Industrial Relations Commission of New South Wales and Anor [2010] HCA 1, was nevertheless continued in relation to the more confined particulars although the terms of the High Court judgment had been considered. 5 The evidence for the prosecutor was comprised of the following: an Amended Statement of Agreement Facts with numerous annexures; a DVD demonstrating the remote operation of the loader above ground; extracts from records of interview (requested by the defendant); two sets of photographs depicting the loader, the worksite, the remote controls for the loader and other related matters; a copy of the defendant's remote control internal audit regarding operation of loaders dated November 2005; a memorandum from the Department of Primary Industries dated July 2007, being a document sent to a number of mine operators seeking the provision of information on their use of remote control loaders, a document sent out following the accident leading to Mr Symonds' death; and, a prior convictions record. The prosecutor relied upon an affidavit sworn by Mr Paul Raftery, a senior investigator employed by the Department of Industry and Investment (formerly the Department of Primary Industries). The prosecutor also handed up four victim impact statements being statements prepared by Mr Symonds' mother, father, sister and niece. It was noted by counsel that these members of Mr Symonds' family were present in Court as were members of the defendant's senior management. The Agreed Statement of Facts (without annexures) appears as an annexure to this judgment 6 The certificate of prior history showed that the former Department of Primary Industries had charged the defendant with a breach of s 8(1) of the Occupational Health and Safety Act 2000 in regard to an accident that occurred in November 2002. The defendant pleaded guilty to that charge and the matter was dealt with by Marks J in June 2007 where his Honour imposed a penalty of $95,000 on the defendant. It was, however, the joint submission of the parties that the decision of the Full Court in WorkCover Authority v Denson and Ors [2007] NSWIRComm 69 had the effect that the defendant was, for the purposes of these proceedings, to be considered as a first offender with no prior convictions and thus the maximum penalty available was $550,000. 7 The evidence for the defendant comprised two affidavits: an affidavit sworn by Mr Robert Scargill, General Manager, Operations for Perilya, BHP between 2005 and 2008; and, an affidavit of Peter Lean, Manager, Safety and Training with the defendant. Both affidavits annexed numerous documents dealing with the defendant's safety systems and how the systems relating to the operation of the loader had been established, maintained and improved and what additional steps were taken following Mr Symonds' death. 8 Mr Raftery had approximately 35 years' experience in the mining industry, holding tertiary qualifications of Bachelor of Science (Eng), Master of Applied Science (Geomechanics) as well as a Certificate of Competency as a mine Manager for Above and Below Ground Mines and a Shortfirer's Certificate of Competency. For a number of years he had held the position of senior investigator with the Department of Industry and Investment and its predecessor. In January 2007 he had been appointed to investigate the accident at the Perilya mine southern operations at Broken Hill. 9 During his investigation, Mr Raftery was informed of the work performed by Mr Symonds on the night of the accident. He inspected the incident site and reviewed survey plans produced by the defendant: from these matters, Mr Raftery concluded that a remote operator of the loader would gain a visibility advantage, mainly in viewing the side of the machine, by approaching the five metre mark of the drawpoint and he noted that under the then current safe working procedure, the remote operator was permitted to take that action. 10 From his awareness of a number of reports in the industry, Mr Raftery concluded that there was a potential for operators of remotely controlled mining equipment to place themselves in locations where they could be crushed by the machine and he expressed the view that employers in Australia had been urged over an extended period of time to take all practical steps to provide and maintain safe systems of work. He specifically referred to eight separate documents. In February and May 1998, the Western Australian Department of Minerals and Energy reported two incidents where the operator of a remotely controlled loader had died from crush injuries, having been caught between the machine and the side wall. The February 1998 document noted that the circumstances of the fatality were common to other tragic accidents involving remotely controlled machines in both coal and metalliferous mines - it was pointed out that loss of life was avoidable by operating from a safe position well clear of the machines. Also, there were examples of machines being activated without being initiated by the operator. 11 In February and September 1998, the New South Wales Department had published guidelines for the use of remote controlled mining equipment as well as a self-assessment guide for the use of such equipment. In 2000, the New South Wales Department commissioned a pilot study to investigate risky positioning behaviour by operators and maintenance of remote controlled coal mining equipment. The purpose of the study was to measure how often people entered "no-go zones" around remote controlled equipment and to assess and analyse why people did so. The study was to be used to review and improve guidelines and to enhance training of mine personnel. The findings of the study were released and in May 2000, the study identified some reasons for employees standing in the "no-go zones" such as: to obtain a better line of sight; for optimum comfort; out of habit; and, the perception of the danger involved. The study found that it was rare for the operator to have selected a correct position as a safe standing zone. It was suggested that there needed to be ongoing monitoring of this behaviour. 12 In April 2005, the guidelines for the use of remote controlled mining equipment in New South Wales was updated following a reference to an advisory group. That review was prompted by the considerable changes in remote control technology equipment and practices. In June 2006, "Mining Design Guideline 5002", being a guideline for the use of remote controlled mining equipment for metalliferous mines, was released following an extensive review process. The Australian/New Zealand Standard AS/NZS 4240: 1994 dealing with remote controls for mining equipment drew attention to the need for proximity protection to prevent mining operators from being run over or crushed by the machine and the need for a risk assessment. Where proximity protection was required it could be provided by barriers, guards or signal detectors and those devices had to suit the individual machine and operating environment. 13 Mr Raftery referred to four safety alerts issued in New South Wales by the Department between 1998 and 2002. Those documents mainly dealt with remotely controlled mining equipment being activated other than at the initiation of the operator. 14 The safe working procedure in operation at the mine at the time of the accident laid down that, at no time, should the machine be driven within five metres of any person who was not in a safe work location. The safe work procedure document also required operators and employees to remain at least five metres from the loader unless they were in a safe work location and they were to return to the safe work location before the loader returned to the drawpoint. The loader was not to be reversed while the operator was walking backwards. Mr Raftery had spoken to some employees who had encountered occasions where this procedure had not been followed. 15 Among the documents annexed to the Agreed Statement of Facts was the February 1998 guideline for the use of remote controlled mining equipment, a guideline produced after the Minister for Mineral Resources had commissioned a mine safety review. Those guidelines spoke of providing for safe work locations or controlled zones where the mining equipment could not physically enter. Safe work locations were to include "cuddies or chambers" in the walls of drawpoints etc where the shape would be of such a size as not to allow the mining equipment to enter. The guidelines stated that workplace design should take into consideration the special visibility demands of remote controlled operations and that consideration should be given to the use of "tele-remote equipment", enabling an operator to be positioned in a totally safe location remote from the place where the mining equipment was operating. 16 A copy of the September 2006 guideline was attached to the Agreed Statement of Facts and followed upon an evaluation by a group known as the Underground Metalliferous Mine Working Group. This guideline recognised that the hazards associated with line of sight operations required a detailed written assessment to be carried out prior to the commencement of line of sight operations. It then required a detailed action plan to be developed and implemented. The risk assessment was to include consideration of the use of "tele-remote equipment" in order to mitigate the hazards associated with the line of sight equipment. Among the main risks identified with the use of such equipment were: unplanned movement of remote controlled equipment; personnel in close proximity to equipment being operated by remote control; remote operator location during changeover from remote control to manual operation where the operator was not sufficiently clear of the equipment during the changeover; operators failing to follow changeover standards or procedures; planned work procedures not being available and not being used by remote operators; inexperienced operators or supervisors signing off on remote controlled shift procedures; lack of competency based training and assessment programmes for remote controlled operations; and, inappropriate barrier selection or use. Under the heading "Main risk considerations" the guideline stated: Consider the use of remote operations; ... the location of the operator during remote control operations shall be included as part of the risk assessment; ... barrier system design, installation and use should be included as part of risk assessment and utilise the requirements AS 4024 and other standards as appropriate. An example of a remote control check sheet included a requirement to step out five metres from the block mark back to the brow and to place a white paint line on the wall to indicate the control zones. 17 A 2004 audit report on the defendant's remote control loader systems assessed the defendant's procedures against legislation to ensure that the systems and procedures provided for matters prescribed by statutory provisions, compared the procedures with the guidelines referred to earlier and assessed compliance with the defendant's safe work procedure. The audit acknowledged that a large amount of work had been done in regard to the use of remote controlled loaders at both of the defendant's operations (North and South). In late 2003 there was a high level of compliance with the mine's remote control systems and procedures and in summary, it was found that the documented control systems and procedures appeared to comply with legislative requirements although some improvements were recommended. The standard of documentation was considered to be "generally good" although some control issues were identified within the systems. The operators were found to have an "excellent understanding and knowledge" of the defendant's safe work procedures and that compliance with the procedures was "very good". Some general issues were identified and improvements recommended. 18 In October 2004, the defendant conducted a risk assessment for remote controlled load operations. Four very experienced employees were responsible for the document and the mining manager reviewed the document. The positions occupied by those who conducted the risk assessment were as follows: remote operator; mine production foreman; underground safety and training supervisor; and, underground safety and training officer. 19 Mr Robert Scargill was General Manager, Operations of the defendant between 2005 and 2008. He had 25 years' experience in the mining industry holding tertiary qualifications in engineering and mining as well as a First Class Mine Manager's Certificate of Competency. Mr Scargill spoke of the scope and content of the defendant's safety management system and how those policies had been reviewed by a safety consultative committee and had been communicated to employees throughout the mine. There were 10 safety standards identified under the policy and they in turn were supported by guidelines that provided for the implementation of procedures, planning, safe work procedures, job safety analysis and supporting documents. Mr Scargill said that he had been employed by the defendant to promote open communication, to promote debate regarding safety and to encourage employees to take responsibility for safety. This approach allowed the mine to achieve significant advancements in the safety culture and performance of the mine. In June 2006, Mr Scargill convened a meeting of all operations managers and superintendents to discuss and identify all major hazards applicable to the defendant's operations. He formed the view that operation managers and superintendents needed to be provided with further risk management education and so he required 24 of them to undertake a Minerals Industry Risk Management Course at the University of Queensland. The scope, purpose and content of the Course were explained in his affidavit evidence. 20 The induction process in operation at the time of the accident was explained with Mr Scargill stating that overall, the process took between two and three days involving both theory and practical assessments. He gave the introductory presentation and spelt out the defendant's commitment to safety and its ten golden rules. Mr Scargill then spoke of the training system in operation and how the Australian Mines and Metals Association had been appointed as a registered training organisation with all the trainers and assessors being required to complete a Certificate 1V Level qualification in relation to training and assessing. He explained how shift bosses identified suitable workers for training in the operation of loaders and how on-the-job instruction was conducted for trainees. He gave a full explanation of the communication system at the mine at the time of the incident, involving shift start-up meetings, daily production meetings, panel start-up meetings held every five days, toolbox talks, the activities of the safety and training department, management meetings, the operation of the safety consultative committee, shift supervisor meetings and meetings with unions and representatives of the Department. Mr Scargill gave examples of reports he had produced as General Manager. He gave details of how lost time injury and medically treated incidents had dropped in the few years immediately prior to the accident as being reflective of the effectiveness of the defendant's safety systems in operation. 21 When he commenced at the mine, Mr Scargill familiarised himself with the various procedures, audits and safety management systems that applied at the mine. One of the issues the defendant's senior management were looking at in late 2005 was compliance with the guideline concerning the use of remote controlled loaders. He referred to an audit of remote control systems conducted in 2004 by one of the Department's senior mine safety officers and an internal risk assessment conducted by the defendant later in 2004. The Department had organised a committee of industry representatives to develop a mine design guideline specific to metalliferous mining and the defendant's safety superintendent (Mr Edwards) was a member of that review committee. At its first committee meeting in March 2004, a risk assessment was carried out, facilitated by one of the Department's senior mines safety managers. In November 2005 the defendant used that risk assessment as a guide to reviewing its own systems to assess remote controlled loader operations within the mine. 22 In order to satisfy himself that the systems the defendant had in place were appropriate, Mr Scargill reviewed the Department's audit, the defendant's internal risk assessment, reviewed the local risk assessment and reviewed the safe working procedure, discussed these matters with Mr Edwards, including the direction being taken by the committee, and made personal observations of loaders in operation, together with their safe working procedures. He also held discussions with operators of remote loaders. Mr Scargill noted that the audits indicated that the systems for managing remote loader operations were "appropriate" and that there was no suggestion that the systems of work used by the defendant in this regard were inadequate. The system in use at the time of the accident had been in place for a number of years with no safety concerns being raised either formally or informally. Mr Scargill was therefore satisfied that the defendant was working within the guideline and operating an appropriate system in relation to remote loader operations. 23 Following the incident, Mr Scargill suspended all the defendant's mining operations for 24 hours and specifically suspended the use of remote loaders until initial outcomes of the investigation, necessary risk assessments and procedural reviews had been completed. After those decisions had been taken, the Department notified the defendant that remote loader activities were to be prohibited. The defendant established an investigation team including experienced operators, supervisors, managers and experts to investigate the accident. A team of operators, supervisors, managers and safety department members carried out a detailed risk assessment of the remote loading operation and after reviewing a number of different controls, identified laser barriers as an additional control for this operation. Under this system two laser barriers were set up five metres apart between the loader operator and the loader in such a way that if either beam was broken, the loader stopped. The assessment team identified a further control which was the use of tethering of the remote control box either to a concrete block or to some other fixed point thus limiting the operator's movement to five metres. The safe work procedure was revised and all remote loader operators were retrained in the updated safe working procedures. 24 An internal review of the revised safe working procedure was conducted by senior management prior to an audit by two inspectors from the Department. After being successfully audited, the mine returned to using remotely controlled loaders. Problems were experienced with the new laser barriers that proved ineffective as a result of contact with water. When this occurred loaders could pass through the laser beam and would not be disabled. Enquiries were made of suppliers of the lasers and the defendant trialled the use of covers over the transmitter/receiver and instructions were given to operators to wipe down, from time-to-time, the transmitter/receiver and to test the laser beam during their shift. Mr Scargill raised this issue with the Department's safety advisory committee in November 2007. 25 It was explained by Mr Scargill that the introduction of laser barriers created significant issues in relation to mine design. To operate the laser it was necessary for the drives leading to the stopes to be as straight as possible for a minimum of 25 metres before the final brow of the drawpoint thus allowing adequate space for the loader to operate without breaking the beam and allowing for the beams to be set up and the loader operator to be located. Another issue was the retreating nature of the drawpoint and as it was not possible to provide the required drive design for most stopes, it was no longer possible to mine those stopes using the remote loader. The defendant was therefore unable to conduct mining operations using line of sight remote loaders in most areas and so began increased use of tele-remote units. The defendant had two tele-remote loaders being trialled at the time of the Mr Symonds' accident. The tele-remote loaders required a differently designed stope bottom layout and could only be introduced systematically as the mine developed new stopes. At that time the defendant had a third tele-remote loader on order and planed for a fourth tele-remote loader. 26 Following the accident the defendant provided counselling support for all the workers, including Mr Symonds' family and members of the Department. Each member of Mr Symonds' shift was contacted the following day to see how they were coping and on return to work, the defendant insisted that they work in pairs and take three-hour breaks to manage their return to work. On return to work all employees were required to work on an alternative work regime requiring them to take longer breaks and have increased contact with each other. Several weeks after the accident the remote activities recommenced. During this period the defendant's mining activities were limited to two tele-remote loaders and over the following six months adjustments to mine design occurred to accommodate the new remote setup and greater use of tele-remote loaders. 27 Mr Scargill noted that, following the incident, he fully co-operated with the Department's investigation and encouraged those whom he managed to also fully co-operate with that investigation. He spoke of the incident at the mine shocking the defendant's management and workforce in circumstances where they had felt that progress was being made in improving the mine's safety performance. The mine workforce was extremely experienced and well trained and the incident greatly affected everyone. Mr Scargill said that he maintained contact with Mr Symonds' parents following the incident and the defendant assisted the family by securing Mr Symonds' superannuation and WorkCover payments and continued to pay his salary until those payments commenced. Mr Scargill took Mr Symonds' family underground to the site of the incident where a meeting of staff and the family was held on the anniversary of Mr Symonds' death. While he remained in Broken Hill, Mr Scargill met the family every four to six weeks to discuss the progress of the investigations and to ensure that they were receiving adequate support. In March 2007, Mr Scargill travelled to Queensland to meet Mr Symonds' brother, providing him with information and answers to questions and to offer support. 28 Mr Peter Lean was the Manager, Safety and Training for the defendant, a position he had held since September 2008. His lengthy affidavit was accompanied by numerous annexures dealing with the operation and development of the defendant's safety systems. Mr Lean also spoke about the overall operation of the defendant as mining ores containing zinc, lead and silver minerals. The defendant was involved in underground mining said to require extensive development, drilling, blasting, loading, or haulage and hoisting operations to bring the ore to the surface. Loaders were described as an integral part of the mining system and were used to bring broken material to trucks or ore passes. The loaders were used in both manual and remote modes. The manual mode was used in areas where the roof was supported and there was no risk of ore "rilling from the stope". The remote mode was used in any area where there was a risk to the operator, including where the roof was unsupported. The diesel loader being operated by Mr Symonds at the time of the accident was approximately 11 metres long, more than 3 metres wide and approaching 3 metres in height. The usual travelling speed, in manual mode, with the operator on board in top gear was approximately 18-20 km/per hour. When in remote mode "tramming under line of sight conditions" in first gear, the loader operated at approximately 2-3 km/per hour. The speeds varied depending on the weight of the load being carried and the grade on which the loader was being operated. Nevertheless, the loader was limited to using first gear during remote operation. 29 A major restructure took place in September 2008 in order to allow the mine to keep running until there was an upswing in metal prices. As a result, the defendant presently employed approximately 360 people. Mr Lean said that, when the defendant purchased the mine in 2002, it became apparent that there was a need to bring about a significant cultural change involving its employees and this proved to be a long-term task. He identified a critical element of the evolving culture of the defendant being the health and safety environment management system and a copy of that document was annexed to his affidavit. 30 In relation to current mining practice, Mr Lean stated that the defendant had adopted tele-remote loader operations as the primary method of material movement from stopes. Loaders were conventionally used for the development of stopes and the initial extraction of ore and once the brow was open to the point where the operator could be placed in a hazardous position, conventional operation was ceased and tele-remotes were adopted. Mr Lean explained that the tele-remote loaders were operated from a dedicated tele-remote station located remote from the stope and isolated from the loader. Laser barriers were used to isolate the loader and prevent personnel and equipment interaction. The conversion to tele-remote loaders had been an expensive and time-consuming exercise. Even with increased efficiencies using that technology, the operators have taken between six and twelve months to adapt to the efficient operation of tele-remote loading. The costs of converting to tele-remote loading was an expensive operational cost. The initial outlay for converting the defendant's loaders to tele-remote operational level was approximately $865,000. The operational costs of the tele-remote loader was more expensive than line of sight loaders. Mr Lean said that the introduction of the tele-remote loaders and the training periods required for their use adversely affected production and revenue during the 2007 calendar year. 31 By reference to extensive annexures, Mr Lean spoke in detail as to the operation of the various safety systems and procedures in operation at the mine. He referred to the health, safety environment management system and how it was compliant with various Australian standards and quality assurance principles. Risk management was described as being fundamental to the defendant's management and formed an integral part of the safety system. There was a risk management guideline that involved a number of other documents that were made available to the workforce and the operation of those documents was explained in detail. These documents included: "The Rules to Live By"; a personal risk tool "Take Time, Take Charge" allowing employees to perform structured on-the-job risk assessments; a team based process for undertaking a job safety analysis; the operation of workplace risk assessment and control; the process involved in hazard identification and control and its use as a learning opportunity; the use made of incident and accident investigation reports; behavioural management as an integral component of the safety system involving leadership from a management level and being described as being the most useful tool for bringing about behavioural change over the past 18 months; training through the National Training Framework since 2007 being a framework developed in 2005 by the Australian National Training Authority with a description of the defendant's training package; the induction process and requirements; the July 2009 introduction of new methodology and structure for skills training for employees; the change since 2008 to the defendant's competency assessment programme to meet the requirements of the Australian Quality Training Framework; the composition and operation of the safety committee; and, the method of monthly reporting to the Perilya Ltd Board in relation to safety matters. 32 From enquiries he had made, Mr Lean understood that Mr Symonds was considered to be a good and safe operator who was proficient according to his required training. He worked safely. The defendant had co-operated with the Department during its investigation of the incident. On behalf of the defendant he had been authorised to express its remorse for its failures and stated that the defendant's management was particularly regretful for the impact of those failures on Mr Symonds' partner, family and colleagues (including management) at the mine and within the Broken Hill community. The defendant's Board had authorised him to make the following statement on their behalf: Perilya BH recognises that our health and safety management systems failed to satisfy our obligations under the Occupational Health and Safety Act 2000 by failing to ensure that Mr Symonds was not exposed to risk. Perilya BH accepts that it failures exposed Mr Symonds to risk as to his health and safety and resulted in his death. Perilya BH accepts responsibility for these failures. DELIBERATION 33 The first and primary consideration is the objective seriousness of the offence. In the present matter it was common ground that the immediate circumstances that led to Mr Symonds' death were unknown, apart from the fact that he was working alone with the remote loader on this shift. There is no evidence before the Court of machinery malfunction and indeed, it was an agreed fact that an Inspector who carried out tests on the remote function obtained no unexpected results and none were witnessed and no false or unplanned events could be created. In accordance with the safe work procedure, a line had been painted on the wall that designated the five metres safe distance from the brow of the stope. In the reversing of the loader, operators were to remain five metres clear of the loader. A scale drawing of the position of the loader and the point where Mr Symonds was crushed, demonstrated that the loader had been brought back behind the five metre mark from the brow painted on the wall. For a reason or reasons unknown, Mr Symonds was unable to or did not maintain a five metre distance between himself and the loader. The defendant's safe work procedure also allowed operators to move up to the side of the loader to visually check the work but the loader was to be disabled when this occurred. 34 It is to be remembered that the defendant entered its plea of guilty in relation to the following particulars establishing a breach of s 8(1) of the Act: 1. Employees were exposed to the risk of being struck by load haul dump machines while using line of sight remote controlled equipment. 2. Employees were exposed to the risk of being crushed by load haul dump machines whilst using line of sight remote controlled equipment. 3. It is alleged the defendant: (d) failed to provide appropriate engineering controls so as to prevent workers from being able to move up to, alongside or past remote controlled loaders whilst they were operating and/or able to be operated. As a result of the said failure Jason Symonds' safety was placed risk and he died. 35 It will be seen that particular 3(d) refers to the failure to provide appropriate "engineering controls": it was not suggested that the term "engineering controls" had a specific, statutory meaning or was a term of art but that, simply, it was to be distinguished from administrative controls. The prosecutor drew attention to the terms of cl 5 of the Occupational Health and Safety Regulation 2001 dealing with the meaning of "control" of risks. In summary, that clause provided that for the purposes of the Regulation an obligation to control a risk to health or safety was an obligation to take a number of specified measures to minimise the risk to the lowest level reasonably practicable. The five identified measures included, "Minimising the risk by engineering means" and "Minimising the risk by administrative means (for example, by adopting safe working practices or providing appropriate training, instruction or information)". Following the accident, the defendant updated its risk assessment requiring that the risk of being struck by a machine be controlled in the following ways: A minimum of two (2) of the following hard barriers, where (1) is a laser; (a) cuddy - of a size whereby the machine cannot enter into (b) or laser barrier/s; (c) concrete remote block - of the size whereby it would not fit under the machine or into the cuddy. To be of a design/state where it cannot roll; (d) proximity controls; (e) lanyards; (f) or if not possible to go to tele-remote bogging; (g) minimum barrier distance to be determined on a stope by stope basis taking into account gradients, loads, stope condition (wet/dry) and layout. It appears that the prosecutor accepts that the substance of these measures would fit the ordinary English meaning of the words "engineering controls". 36 It was submitted for the prosecutor that the defendant had failed to put into operation appropriate engineering controls and that by its plea, conceded that there were such controls open to it and it had failed to adopt them. The "hierarchy of controls" was clearly set out in cl 5 of the 2001 Regulation indicating the obligation upon employers to put in place the highest level of control reasonably practicable. The culpability of the defendant, therefore, was not significantly reduced by the fact that a lesser control was in operation. By definition, lesser controls were less effective in minimising risk. In the present case, the defendant had relied largely upon administrative controls such as those identified in cl 5 of the 2001 Regulation and they were ineffective in protecting against the risk of a loader operator being struck or crushed by the loader during its operation. Further, it was alleged that the risk was not only foreseeable but had been foreseen by the defendant and was recognised in its risk assessment. In addition, documents before the Court demonstrated that this risk was well known and well publicised within the industry. 37 The defendant pointed to both its general detailed safety systems that were under continuous development from the time of the purchase of the mine in 2002 and to the specific controls applied to the operation of the loader. Not long after purchasing the mine, the defendant was involved with the Department in relation to industry practices including the remote operation of the loader. The evidence demonstrated that there was a well developed safety system in relation to this risk and an issue could be raised about safety and it would be attended to. The defendant was striving to achieve, generally, the introduction of safe systems of work. There was not only the Departmental risk assessment of working with remotely controlled loaders but shortly after, the defendant conducted its own risk assessment. It was submitted that the defendant had participated with the Department in identifying risks in the operation of these remotely controlled loaders both in relation to its own operation and for the mining industry generally. There had been ongoing co-operation with the Department on these matters and participation in Departmental initiatives that were published for the benefit of the entire industry. 38 In relation to the issue of foreseeability, the defendant had addressed the issue of operators and other employees being too close to the loader and had required a five metre prohibition zone to be observed. The Australian Standard, first published in 1994, itself required safe operating distances to be determined by risk assessment. On a risk assessment, the defendant had determined and it had been accepted that a five metre prohibition zone meant that operators and others were not at risk. There were other measures such as the provision of a cuddy (cut into the wall of the mine and too small for the loader to enter) and the use of concrete blocks large enough to stop the loaders that were identified by the defendant as being effective against the risk. The defendant's systems looked at how, in fact, the loader operated and prohibited the operator or others from approaching the loader unless it was turned off or disabled through the remote control device. No one else was allowed into the work area and there was a requirement for prior contact and permission before any approach would be allowed. The remote device itself had a tilt control so that once it reached a certain point of tilt, such as if it was dropped or the operator fell over, then the loader was disabled. The defendant said it was important to note that, in the 2005 Departmental risk assessment, there was no suggestion of added measures by way of engineering controls to address this risk. The Inspector investigating the loader did not see any problems with the safety methods adopted by the defendant. In addition there was a wealth of experience amongst the defendant's employees, including those with operational experience and, at every step, appropriate people were involved in assessing the use and operation of the loader under remote control. The 2005 audit conducted by the defendant had been reviewed by Mr Scargill who formed the view that the audits indicated that the systems for managing remote controlled loaders were appropriate and there were no suggestions that the systems of work used by the defendant in relation remote controlled loaders were in any way inadequate. No safety concerns had been raised about that system. 39 It was drawn to the attention of the defendant's senior counsel that a number of measures adopted after the accident involved measures that had been identified prior to the accident such as, the use of an appropriate cuddy, the use of a remote concrete block and proximity controls. Senior counsel for the defendant accepted that those measures continued and were effective but that the new measure of significance was the requirement that there be a laser barrier so that if the loader broke the beam it would be disabled. The other more basic measure, that was new. was the use of a lanyard attached to a fixed point at one end and to the control mechanism on another thus controlling the extent to which an operator could proceed down the drive to a maximum of five metres. Senior counsel said that the defendant accepted that laser technology was available at the time of the accident and that the failure of the company to adopt that measure essentially constituted the breach. It was reasonably practicable to use the laser technology to address the risk of serious injury in the use of remotely controlled loaders. 40 There is much force in the defendant's submissions as to its diligence in reviewing, assessing and laying down measures to minimise the risk to operators and others in the vicinity during the use of remote controlled loaders. There was no Australian Standard or Departmental guideline requiring the use of lasers to disable a loader and this measure does appear to be one not previously considered within the industry although it appears that loaders had been used in mining since approximately 1990. The evidence suggests, however, that even the laser system was not without its difficulties, especially in wet areas and that the best control measure was to remove operators entirely from the work area and to adopt tele-remote operations. Mr Scargill stated that there were significant issues concerning mine design that arose with the introduction of laser barriers such that it was not possible to conduct mining operations at Perilya using line of sight remote loaders in relation to most areas. It was this difficulty that prompted the defendant to increase its use of tele-remote units. In fact the defendant had two tele-remote loaders that were being trialled at the time of Mr Symonds' death. It seems abundantly clear from this fact that the defendant was addressing a better method of operation that would remove the loader operator from the work area and thus avoid any risk of being struck or crushed by the loader. To this extent the risk was not only foreseeable but, as suggested by the prosecutor, was foreseen by the defendant: the defendant, however, was in the process of addressing that risk by another method of operation. Having regard to all these matters, it is clear that the risks identified had the potential to inflict very serious and/or fatal injuries. Although the defendant's breach may be classified as objectively serious, the surrounding circumstances do not place that breach in the highest range of penalties. 41 The Court is obliged to factor into its penalty considerations the concept of general and specific deterrence and no party made submissions to the contrary. While the defendant made no direct submissions as to specific deterrence, the evidence shows the defendant to be a significant employer in the mining industry on an ongoing basis. The defendant's undertaking is a heavy industry with notorious risks associated with its operations. The defendant has taken commendable steps to address and minimise those risks. In relation to this type of risk associated with remote controlled loaders, the evidence establishes that, because of difficulties associated with the use of laser protection, remote controlled operation has been significantly reduced although it has not been eliminated. It appears, on the evidence, that as much use as possible is now being made of the tele-remote system, a system that provides a very high level of protection to operators. Having regard to these matters, whilst specific deterrence remains a consideration in setting an appropriate penalty, it will do so at a reduced level. 42 There are some subjective factors to which attention should be given. It is accepted that, on the approach of the Full Bench in WorkCover Authority of New South Wales v Denson and ors [2007] NSWIRComm 69, the defendant is to be treated as a first offender and is to be accorded the leniency which attends that status. As earlier observed, the defendant operates in a heavy industry that is notoriously dangerous and it has taken extensive steps to address the risks that arise in the day-to-day operation of its mines. The reduction in lost time and injury reports shown in the evidence demonstrates a commitment to a safe working environment. Although this incident involved the tragic loss of life of an employee, nevertheless, the company has a reasonably good safety record. The defendant co-operated with the Department prior to the accident and co-operated with the Department in its investigation of the accident. That is an important fact that should be taken into account in mitigating the overall penalty. The evidence also demonstrates that there was continuing contact with Mr Symonds' family after the accident and steps were taken by the defendant to address the financial circumstances of the family until compensation provisions came into operation. Those actions, together with the statement made to the Court accepting responsibility for this breach, permits the conclusion that the defendant has demonstrated its contrition in relation to this workplace accident. 43 A question has arisen as to the extent to which the defendant's plea can be categorised as an early plea justifying a discount as discussed in R v Thomson; R v Houlton (2000) 49 NSWLR 38. In the present case, it has been earlier recorded that the plea of guilty was not entered until the fifth occasion that the matter was before the Court: the first plea and directions hearing occurred in late March 2009 and the plea was entered in August 2009. The plea that was entered on that occasion accepted that a breach had occurred but rejected the particulars specified in the Application for Order. Two further directions hearings were vacated by consent while the parties continued their discussion as to particulars and in late October 2009 the matter was set down for a one-day hearing in December 2009 on the basis that there would be a need for the prosecutor to establish the particulars upon which he relied. At the December 2009 hearing an Agreed Statement of Facts together with some annexures was filed in Court but the parties estimated that the hearing to establish the particulars in contest would require three hearing days. The matter was then set down for hearing, beginning on 10 May 2010. At the hearing it was accepted that in May 2009 the defendant had offered to plead guilty to particular 3(d) and until early 2010 the prosecutor had rejected that position, being at a time, l after the High Court decision in Kirk was delivered. Following the High Court judgment, the prosecutor agreed to proceed only on the basis of particular 3(d) as identifying the acts or omissions of the defendant with particulars 1 and 2 identifying the risks, matters that had not been in contest. 44 In December 2009 the parties gave prior warning that the one day hearing was insufficient and should be vacated but assured the Court that they had been working hard to reduce the differences between them and that discussions were continuing. It was indicated by the defendant at that time that continuing discussions could lead to the matter being resolved in one day rather than three days. In October 2009 the Court was advised that, although discussions were proceeding, there was a possibility that more than one day would be required but that could not be accommodated by the Court in the time available for the remainder of the year. On 12 August 2009 when the plea of guilty was entered senior counsel for the defendant, in entering the plea, stated that it was a plea to the essential elements of the charge. When the matter was first before the Court in late March 2009, the Court was advised that the prosecutor's brief of some 9 volumes had only recently been served and having regard to the recent Christmas/New year break, it was reasonable for the defendant to have a further six weeks to consider its position. When the matter returned in May 2009, the defendants were in the course of preparing submissions for consideration by the prosecutor and sought an adjournment to allow that to occur and also to allow time for the prosecutor to consider those submissions. By mid-June 2009 the defendant's submissions had been forwarded to the prosecutor and a reply had recently been received but the defendant sought further time to consider its position. In late July 2009, the defendant sought a further adjournment in order to obtain instructions in relation to the latest position conveyed by the prosecutor. 45 The considerations that should attend upon an evaluation of whether or not there had been an early plea were recently discussed by the Boland J, President, in Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143. In that case his Honour referred to a number of judgments of the Court of Criminal Appeal and in particular R v Borkowski [2009] NSW CCA 102. The application of principles concerning the availability of a discount in general criminal matters as applied in this jurisdiction was discussed by his Honour at [36] et seq: 36 Based on the authorities, in considering the amount of discount to be given for the utilitarian value of a plea of guilty it is clear the Court must have regard to the contribution that the timing of the plea makes to avoiding the waste of time and resources of the sort referred to in R v Thomson and that some explanation of how the discount was arrived at should be provided. The discount of 25 per cent should, in the majority of cases, be reserved for those cases where the timing of the plea provides the greatest utilitarian value. In assessing that value regard would need to be had to the complexity of the issues about which evidence would have to be gathered and adduced. 37 It is recognised, of course, that the waste of time of jurors who are needlessly assembled for trial would not be a relevant consideration in this jurisdiction. On the other hand, if a defendant spends a long time before entering a plea and the prosecutor has expended resources on preparing for a trial, that will be a relevant consideration. If a defendant is served with a brief of evidence and indicates it will plead guilty subject to negotiations over particulars of the charge and those negotiations proceed to the point where a plea is eventually entered without the prosecutor having to expend time and resources preparing for a trial, that will also be a relevant consideration in assessing the amount of discount. 38 However, simply because a defendant waits until the prosecution amends the charge before entering a plea at the earliest opportunity thereafter, that will not, in my opinion, automatically lead to the sentence being discounted by 25 per cent. Some assessment would need to be made about whether the delay in pleading caused an unnecessary waste of time and resources. 39 In that respect, Mr Moses referred to the fact that costs are a feature of the Court's occupational health and safety jurisdiction whereas that is not the case in the general criminal law. This would be a relevant consideration, but the awarding of costs to the prosecutor in sentencing proceedings does not mean that regardless of the timing of the plea the maximum discount should be allowed on the basis that the prosecutor has been compensated for the resources used in the prosecuting the case. Costs, for instance, do not account for a court's time. 40 It seems that the position in this case was that the applications for orders were filed on or about 9 September 2008. At a directions hearing in December 2008 directions were made for the provision by the prosecutor of further particulars and that the defendants were to make any representations to the prosecutor by 30 January 2009. The matter was stood over until 23 February 2009 on which occasion it was adjourned for what reasons is not known. The defendant subsequently indicated in March 2009 that a plea of guilty would be entered to a number of the particulars and not others. Negotiations between the parties ensued and on or about 24 April 2009 the prosecutor indicated that two of the particulars objected to by the defendants would not be pressed. On or about 4 August 2009, further amendments were made to the particulars. There were also negotiations concerning an Agreed Statement of Facts that led to the late withdrawal of a serious factual allegation against the defendants on 10 August 2009. 41 The indication by the defendants that they were prepared to enter a plea subject to amendments to the particulars and such amendments were subsequently made, suggests that the defendants should receive the benefit of a substantial discount. However, the defendants' objections to the particulars were not entirely resolved until early August and after the matter had been set down for a two day hearing over contested particulars. One of the particulars to which the defendants objected was that alleging there had been no risk assessment. That was amended to 'no adequate risk assessment'. In my view that was a significant amendment, having the effect of mitigating the objective seriousness of the offences in this case. 42 Having regard to all of the circumstances, I consider that the discount for the utilitarian value of the guilty pleas should be at the high end of the scale. 46 It is of significance that by the second or a least the third directions hearing, the issue of particulars could have been resolved if the prosecutor had then accepted the proposal put forward by the defendant. Up until the second or third directions there were a large number of volumes constituting the prosecution brief that justified some delay in entering a plea, especially in light of the late service of the brief. There is no doubt that the parties continued genuine efforts over a number of months to resolve the question of particulars and there is also no doubt that, by the end of 2009 and in early 2010, the parties were giving active consideration what might flow from the decision of the High Court in Kirk. This combination of unusual circumstances supports, at the very least, a discount at the higher end of the range. There was, however, no evidence or other material from the prosecutor to suggest that the delay in finalising the issue of particulars had led to the accumulation of additional costs in preparing for the hearing rather than costs being incurred in participating in negotiations with the defendant as to the particulars to be specified in the charge ultimately pressed. Had the matter proceeded to trial, undoubtedly there would have been a much longer hearing dealing with the technicalities of the remote operation of the loader in circumstances where it was not known precisely what occurred that resulted in Mr Symonds' death. There is a considerable utilitarian value in this plea such that a discount of 20 per cent on the penalty should be allowed. 47 It is has been earlier recorded that the prosecutor made available Victim Impact Statements from four members of Mr Symonds' family. Having concluded that the charge, as ultimately particularised, has been made out and that the plea has been properly entered, the Court proposes to formally receive and consider the Victim Impact Statements prior to sentencing the defendant. The four members of the family were present in Court and were, therefore, necessarily, subjected to the anguish of reliving the events that occurred in 2007 and their loss of Mr Symonds. Their statements demonstrate to the Court the ongoing effect of workplace fatalities. At the conclusion of the hearing the Court formally extended its condolences to the family for their sad loss. ORDERS 48 Having regard to the various matters discussed above, the Court makes the following orders: (a) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as ultimately particularised in Matter No IRC 2372 of 2008 to which the defendant entered a plea of guilty; (b) the defendant is fined the sum of $130,000 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as assessed. ANNEXURE AGREED STATEMENT OF FACTS 1. At all material times the Prosecutor was an investigator duly appointed under s.127 of the Mine Health and Safety Act 2004 and thereby by section 47A of the Occupational Health and Safety Act (NSW) 2000 (OH&S Act) is taken to have been appointed as an inspector under the OH&S Act and empowered under section 106(1)(c) of that Act to institute proceedings in this matter. 2. At all material times Perilya Broken Hill Limited (ACN 099 761 289) ("Perilya") was a corporation whose registered office is now situated at Unit E 661 Newcastle Street Leederville Western Australia 6007 7E1980178. Introduction 3. On 31 May 2002 Perilya Broken Hill Ltd (ACN 099 761 289) took control of the Perilya Broken Hill operation acquiring it from Pasminco. 4. The Perilya Southern Operations Mine is an underground silver, lead and zinc mine situated at Wentworth Road, Broken Hill in the State of New South Wales ("the Mine"). 5. The method of mining requires extensive development, drilling, blasting, longhole stoping, loading or bogging, ore haulage and hoisting operations to bring the ore to the surface. Once on the surface it is then treated in the concentration plant. The steps involved in the mining process are: (a) location and mapping of the ore body; (b) drilling holes with a development jumbo into the ore body to develop access tunnels; (c) the holes are charged with explosives and fired; (d) the blasted material is bogged out with a loader (LHD ); (e) holes are then drilled into the ore body with a longhole drill to stope it; (f) these stoping holes are filled with explosives and blasted; (g) creating a larger excavation (the Stope ) than the one previously created during development; and (h) broken ore from the stope is loaded out by LHD, onto trucks which haul the material to a crusher, where it is loaded into a skip and hauled out of the NBHC shaft. The Incident 6. On 9 January 2007 Jason Symonds (Mr Symonds) was working at the Mine on the night shift when some time between 10.25pm and 11.00pm he became pinned between the wall of the stope access tunnel and the LHD. He was working alone at the time. He received serious crush injuries and died. Employment 7. Mr Symonds commenced employment with Perilya on 26 April 2006. From 2003 he regularly worked at the Mine as a contractor employed by Woodman's Tyres and then by West Hire. 8. At the time he commenced employment with Perilya, Mr Symonds, had already been trained by Perilya in various safe systems of work relevant to the mine including ground support assessment, re-entry after blasting and traffic control underground. 9. Mr Symonds was assigned to an underground crew supervised by Brett Pettit. Mr Pettitt had known Mr Symonds for approximately 10 years as at 9 January 2007. 10. LHDs may be operated either manually or by line of sight remote (LOS). When used manually the operator sits inside the cab of the LHD and operates the controls directly. The cab accommodates one operator at a time. When used with the LOS the LHD is operated from a distance using the remote control to operate the LHD. 9. Mr Symonds was assigned to an underground crew supervised by Brett Pettitt. 11. Mr Pettitt identified Mr Symonds within a short space of time as being suitable to be trained to manually operate a LHD. Mr Symonds obtained a training permit for manual LHD operation on 5 June 2006. He obtained his manual LHD operator's ticket on 20 September 2006. On 30 October 2006 Mr Symonds obtained a training permit for LOS remote LHD operation. On 8 December 2006 he obtained his LOS LHD operator's ticket. 9 January 2007 12. Mr Symonds commenced work at 7.00pm on 9 January 2007. He attended a shift start up meeting. His allocated work was to operate LHD N98 by LOS remote control from the "front" drawpoint at the 19SAL99C stope. A drawpoint is an access area in a stope where the LHD obtains access to the stope. 19 SAL 99C has two drawpoints a "front" and a "back". However, the front or southern drawpoint was the only one being accessed. . 13. After the start up meeting, Mr Symonds approached his supervisor, Mr Pettitt, and enquired about a remote fault that he had reported on the previous shift. The plod sheet3 noted that the loader had been booked out for 1.5 hours for remote checks on the day shift. The "Remotes out of Service Card" was available (held by Mr Pettitt) - this indicated that the machine was in service. 14. After going underground Mr Symonds took LHD N98 to the maintenance bay and had minor repairs described as 'repair door bracket' completed. 15. On arrival at the worksite, 19SAL99C drawpoint, Mr Symonds called Mr Pettitt, about the drawpoint, Mr Pettitt asked him to wait until he arrived and went to see him straight away. 16. Upon Mr Pettitt's arrival they did the remote checks. No issues were identified with its operation. The remote checks involved stop and start of the machine, the emergency stop button, all bucket controls; up, down, dump and curl, left and right steering, and tilt shut down on the remote set. Mr Symonds did not fill out all the required paperwork on 9 January 2007. 17. Mr Pettitt operated the remote using LOS in order to show Mr Symonds where a big stone/rock in the stope was located. Mr Pettitt instructed Mr Symonds to dig around and expose the large stone/rock in the stope. Mr Pettitt then left the area. 18. At about 10.25pm Albert Veenstra, a geological sampler and Ashley Kenwell his trainee, arrived at the sign blocking entry to the remote loading area, which along with the flashing lights had been set up by Mr Symonds upon his arrival at the worksite. They could not see what was happening due to the layout of the area. Entry to a remote loading area was prohibited in accordance with the safe work procedure SWPU701 and was indicated by a sign and a flashing red light placed at the entrance to the work area. The SWP required persons, before entering, to make radio contact with the LHD operator. Mr Veenstra and Mr Kenwell called Mr Symonds three times on the radio and received no response. Mr Veenstra wound down his window and heard the LHD operating in the stope and decided to return later. Mr Veenstra heard the LHD revving up and down and formed the opinion that Mr Symonds was operating the LHD remotely using LOS and could not respond to the radio which was located in the loader. 19. Jason Ball, a LOS remote LHD operator, was allocated "hot seating" duties on that shift which involved relieving operators while they have crib (a meal). Mr Ball went to see Mr Symonds to see what time he wanted to take crib. Mr Ball was accompanied by Peter Semmens. They arrived at the stope location shortly before 11.00pm. 20. Mr Ball and Mr Semmens found Mr Symonds pinned against the right hand wall of 19SAL99C drawpoint, by the rear of the LHD. The loader engine was not running, which is consistent with the tilt switch in the remote control shutting the loader down. The transmitter and receiver outputs remain in operation even when tilted. When the transmitter is tilted, "Transmitter Tilted' will appear on the LCD and after 2.5 seconds the receiver outputs will be switched off and the service brake will apply. Mr Symonds died from severe crush injuries and asphyxiation. The Loader Remote Radio Control System 21. Radio remote control systems are fitted to LHD's to enable the LHD to go into underground stopes and under unsupported roof while allowing the operator to remain in a safe location. The radio remote control system could be switched on and off allowing operators to manually drive the LHD in areas other than unsupported roof. The radio controlled system fitted to N98 was a CM2000D which was designed to comply with the Australian Standard "Remote Controls for Mining Equipment" AS/NZS 4240. 22. Perilya were operating 10 LOS remote controlled LHDs at the time of the incident. The Mine was undertaking an upgrade program of the LHD remote radio control system to replace the original supplied Nautilus radio systems with a system from Remote Controlled Technologies (RCT). The upgraded radio systems that were being fitted to the LHDs were manufactured by RCT, Perth Western Australia. At the time of the incident 7 LHDs had the RCT equipment fitted. 23. LHD N98 was the latest LHD to be upgraded to the RCT Control Master CM2000D radio system. The upgrade was completed at Cavpower Broken Hill (Cavpower) on 26 December 2006. Cavpower is the local distributor and agent for Caterpillar and an agent for the installation and service of the Control Master CM2000D radio systems. Caterpillar does not manufacture their own radio controlled systems, but supplies the machines pre-wired for use with radio remote controlled systems that are manufactured by a third party. The LHDs are supplied with a radio interface unit which is designed by Caterpillar and manufactured by RCT. The interface logic box connects the LHD hydraulics and engine system to the radio system. 24. The radio remote controlled system consisted of: 1. a remote control transmitter, which is carried by the operator using a shoulder harness; 2. a radio receiver, which is installed on the loader and receives the radio signals from the transmitter; 3. the transmitter and receiver operate as a master/slave pair on a discrete frequency. Data is sent between the two units via a radio link; 4. the radio receiver's electrical outputs are either on/off or proportional via hard wired signal cables. The outputs are connected to the interface logic box which drives the outputs to either the logic lead or dash lead for control of the hydraulics and engine. 25. The Mine also had one tele-remote4 station which could operate LHDs set up with cameras. 26. After LHD N98 was upgraded, it was returned to service on 27 December 2006. On 2 January 2007 Mick McRae, the day shift operator of LHD N98, identified that LHD N98 was intermittently very hard to turn to the right. He told Anthony Hocking, the oncoming night shift operator of LHD N98 for that shift, of the issue with LHD N98. Mr Hocking submitted a report which caused Damon Ramsay a Cavpower remote technician to attend. In a statement dated 24 January 2007, Mr Ramsay said the following in relation to that attendance: ".. The plod said the problem was "slow steering right". The operator got the remote set transmitter out from the remote box on top of the loader and prepared set for test, this was because he would operate the unit in operation and I wanted to make sure the operator was happy with the remote operation after testing, this is not an unusual practice. The operator under my observations tested the remote set as follows, shut down systems, lights, brakes, forward reverse left/right and bucket controls. The operator drove loader into stope and loaded a couple of scoops of dirt and checked steering operation under loading conditions in this manner. The operator said to me, "yes the steering is a bit slow, you really have to lay the stick over to steer but you can use it ok". I changed sets over by removing old set and fitted replacement set. I then asked the operator to test it again in the same manner as outlined previously. The operator told me that the steering was ok this time. The fault codes (warning system low coolant, engine oil etc other fluid levels), were coming up on the transmitter screen, I then refitted the original set back on to the loader. The operator tested it again and he was happy with its operation. …" 27. On 3 January 2007 a problem was identified with the right hand steer and caused a technician from Cavpower to attend. Craig Caldwell, Cavpower remote technician, did not find a fault on testing. 28. On 9 January 2007 prior to completing his nightshift (which commenced on 8 January 2007) Mr Symonds reported a problem with the steering of LHD N98. Adam Edwards, Cavpower remote technician, tested LHD N98 and found the steering to be precise and proportional. Mr Edwards thought the problem may have been more to do with the operator being unfamiliar with the RCT remote. 29. Various tests were carried out on the LHD and the remote control system after the incident which included a number of operational tests. 30. An independent mechanical assessment of LHD N98 by Gordon Wilkins of Caterpillar Global Mining identified that the interface logic box had an incorrect relay installed in position 8. The relay that was found in position 8 was an on/off type. The correct type should have been a proportional type. 31. The incorrect relay was identified by Mr Wilkins during an inspection in March 2007. Mr Wilkins reported the effect of when the operator operated the Joystick the steering was normally proportional between 40 - 170 of movement. By having the on/off type relay in position 8 the right hand steering would be fully applied at 100. Mr Wilkins further indicated the incorrect relay in position 8 of the interface logic box could have been why the steering had been reported by the remote operators as faulty. 32. The LHD N98 interface logic box was tested by RCT on 3 October 2007. RCT's report identified: (a) steer right is not functioning correctly; (b) relay 8 for steer right is using an incorrect relay type. The wiring was designed for a Hella relay and a Bosch relay was installed. (c) more joystick angle is required to operate the steer right output; (d) when the output for steer right is activated, it is at 100% output immediately. Therefore the output does not 'ramp up' or down relative to joystick movement as the left steer does. This would cause zero or full steering output for right steer. (e) right steer output is higher at any point than the highest left steer output. 33. Inspector Bentham identified in his report of February 2008 that throughout all the operational tests that were carried out on LHD N98 both underground and on the surface, the fault with relay 8 in the interface logic box was unknown until identified by Mr Wilkins. During the operational tests, no unexpected results were obtained or witnessed and no faults or unplanned events could be created. Risks associated with remote controlled mining equipment 34. The risks associated with remote controlled mining equipment had been identified and were documented within the industry prior to the date of Mr Symonds' accident. 35. The Department of Primary Industries (now the Department of Industry and Investment) and its predecessors, first published in February 1998 the Mining Design Guideline (MDG) 5002 entitled "Guidelines for the Use of Remote Controlled Mining Equipment". This guideline applied to both coal and metalliferous mines. The guideline specifically noted under the heading of "risk management" that the use of remote controlled mining equipment can expose workers to different hazards, such as being crushed by the machine being operated or being crushed by other machines. 36. After a review of MDG 5002 between 2003-2005, a metalliferous only version of MDG 5002 was published in September 2006 titled "Guideline for the Use of Remote Controlled Mining Equipment in Underground Metalliferous Mines". The guideline was produced after review and consultation by an industry working party which included Perilya's Mr Tony Edwards. 37. At page 10 of MDG 5002 were listed the "main risk considerations". These included: (a) consider the use of tele-remote operations; (b) development of a competency based training program and review process; (c) development of a system that allows inspections of draw points to be carried out without exposing personnel to an open brow5; (d) the location of the operator during a remote control operation shall be included as part of the risk assessment; (e) barrier system design, installation and use should be included as part of a risk assessment and utilise the requirements AS4024 or other standards as appropriate; and (f) barrier system to be signed off by a competent person/engineer. 38. On 29 January 2004, the Department of Mineral Resources NSW produced an audit report of the Perilya Broken Hill Limited Remote Control LHD Systems ("the audit report"). 39. Robert Jay, Senior Mine Safety Officer, had undertaken the audit on the 5th to the 9th of January 2004. 40. The audit report noted that "the documented Perilya remote control system and procedures appear to comply with the legislative requirements". The report also noted that a large amount of work was done in regard to the use of remote controlled LHDs at both Perilya's Broken Hill Operations (South and North) in late 2003. The results of this work were clearly evident during the audit and were reflected in the high compliance with the Mine's remote controlled systems and procedures. 41. In relation to operating LHDs it was suggested that consideration be given to conducting a formal risk assessment on remote/manual changeover. It was also noted that there was a workshop to be conducted at Cobar on 4 March 2004 where a full risk assessment was to be conducted by way of demonstration. The workshop at Cobar had been organised by the DPI and was the first of a number of meetings to review MDG 5002. As part of that review it was intended a risk assessment be conducted in relation to remote control equipment guideline development. 42. It was also noted that a formal risk assessment should be undertaken when major changes are to occur. The 2004 risk assessment 43. On 16 October 2004 Perilya undertook a risk assessment ("the 2004 risk assessment") for remote control load haul and dump operation. The participants in the 2004 risk assessment were Mark Pearce – remote operator with 17 years mining experience; Craig Dally, Mine Production Foreman with 26 years mining experience; Tony Edwards, Underground Safety and Training Supervisor with 27 years mining experience and Trevor Ball, Underground Safety and Training Officer with 22 years mining experience. 44. The risk assessment was broken down into the following categories: (a) planning and design; (b) stope design; (c) equipment; (d) remote control equipment inc, transmitter and receiver; (e) people; (f) environment; (g) line of sight; (h) safe work location; (i) tele-remote; and (j) recovery. 45. Within a number of the categories reference is made under "Type of Impact" to "struck by or against" and "contact by or with". This reference is used sometimes in relation to LHD's and on other occasions in relation to other identified objects such as rocks. 46. Different controls are referred to within the risk assessment to reduce the risk rating. Controls were such things as compliance with Australian Standards, the existing safe work procedure and pre and midshift checks. Annexed hereto and marked "E" is a copy of the 2004 risk assessment. 47. As part of the risk assessment under category "line of sight"6 the "location of the operator during remote control operation"7 was identified as a potential accident or hazard. 48. The possible types of impact identified were: · struck by or against; · contact by or with; · caught on or in. · falling objects; · restricted vision; and · slips, trips and falls. 49. The risk rating was likely/catastrophic 2. 50. The potential cause was noted as: "Potential for the operator to be struck by; remote controlled equipment, material falling from bucket, rock fall etc." 51. The controls identified were: (i) Competencies basted (sic) training and assessing. (ii) Conducted (sic) remote control risk assessment for each stope. These assessment must include: a. safe work location; b. remote manual changeover position; c. concrete block/cuddy location; d. type and location of barriers; e. ventilation; and f. nearest FAB8 52. A similar identified hazard under the same category was: "Position of the operator whilst conducting remote operation into the open stope." 53. The possible types of impact identified were: (a) struck by or against; and (b) contact by or with. 54. The risk rating was seen as likely/catastrophic 2. 55. The potential/cause(s) were noted as: "Operator exposure to - falling rocks/poor brow conditions/poor pillar conditions/poor draw point conditions/remote controlled equipment." 56. The identified controls were: "Competencies basted (sic) training and assessing conducted remote control risk assessment for each stope. These assessment (sic) must include: (a) safe work location; (b) remote manual changeover position; (c) concrete block/cuddy location; (d) type and location of barriers; (e) ventilation; (f) nearest FAB; and (g) SWP U0026P. 57. Within the category of "line of sight"10 a further potential accident or hazard identified was "types of physical barriers to be used when in RC11". 58. The type of impact was listed as "struck by or against, contact by or with, or, caught on or in." 59. The potential cause was identified as "inappropriate barrier selection or use". The control identified was "type of barriers used to be established at stope risk assessment". Stope risk assessments 60. Both in the "controls" referred to above and other "controls" as identified in the Cobar risk assessment and in the Perilya risk assessment there was a requirement to conduct a risk assessment for each stope. 61. The risk assessments had to include an assessment of the type and location of barriers. 62. A risk assessment had been conducted for stope 19SAL99C. All stope risk assessments are located in an area known as the marble arch12. A set of stope risk assessments were also kept in the production supervisor's vehicle. 63. SWPU701 required the operator of LHD to have familiarised themself with the plans before the commencement of each shift. 64. Mr Symonds haversack, was located in the safe work location. A number of items were located in the haversack including SWP's, 2 risk assessments for stopes and the "Conduct Line of Sight Operations – Training Resource Manual". 65. The two risk assessment documents related respectively to 17WAL28 Uphole Stope and 20SAL99 Downhole Stope. System of Work 66. As at January 2007 Perilya used tele-remotes in some instances and LOS remotes in other instances. 67. The design of the tele-remotes makes it impossible for the operator to be in close proximity to the LHD when it is in use, however, the use of tele-remotes is not always possible. It is necessary to use LOS remotes in a number of situations. To control the safety of operators using LOS remotes Perilya had a SWP U701which indicated that personnel were not permitted within five metres of the brow of the stope. This was referred to as a five metre exclusion zone from the brow of the stope. In addition, it was noted that at no time should the machine be driven within five metres of any person who is not in a safe work location. 68. As at January 2007 the relevant version of the SWP for remote LHD operation was SWP U701 last approved on 4 November 2005. Earlier versions had been approved on 18 December 2003 and 6 September 2002. The predecessor to SWP U701 was U0026P. 69. ... 70. When Mr Symonds was found the SWP U701 found in his haversack was the version approved on 18 December 2003. This document was out of date, it having been superseded by SWP 701 dated 4 November 2005. 71. Both the 2003 and 2005 versions of SWP U701 referred to in paragraph 69 above required an operator to keep a minimum of 5 metres distance from a remote loader and provided a 'position of safety' by way of a 'remote cuddy' or 'remote block'. 72. Both of the 2003 and 2005 versions of SWP U701 specifically allowed for "…the operator to leave the safe work location to gain a better view of the machine's operation" under specific circumstances. 73. An employee leaving the safe work location or cuddy no longer had any hard barrier between himself and the LHD. 74. When Mr Symonds was found a number of other documents were also found either on him or amongst his possessions. They included: (a) the "Operator Daily Book" for N98 with markings on the checklist and start up checks; (b) a two-sided card headed on one side "Remote Control Check Sheet" and on the other "Remote operators Workplace Check This check sheet had not been completed on either side. Mr Pettitt has signed as supervisor on the workplace check side; (c) An uncompleted Daily Workplace Inspection Sheet; (d) the Perilya Training Resource Manual relating to "Conduct Line of Sight Remote Bogging Operation". Within this Manual it is noted that no person is to enter the work area without contacting the operator and receiving clearance to enter. Steps Taken After the Accident 75. Following the accident Perilya stopped Line of Sight remote control LHD driving. This work resumed on 16 February 2007, by which time Perilya had in place two laser barriers which caused the machine to stop if any barrier was broken by either the operator or the machine.. 76. The Perilya updated risk assessment following the accident, which took place on 7 February 2007, required that the risk of being struck by a machine be controlled as follows: 1. A minimum of two (2) of the following hard barriers, where one (1) is a laser; (a) cuddy – of a size whereby the machine cannot enter into (b) laser barrier/s; (c) concrete remote block – of the size whereby it would not fit under the machine or into the cuddy. To be of a design/state where it cannot roll; (d) proximity controls; (e) lanyards; (f) or if not possible go to tele remote bogging; (g) minimum barrier distance to be determined on a stope by stope basis taking into account gradients, loads, stope condition (wet/dry) and layout. 2. Remote equipment to be designed to AS/NZS 4240 – Remote controls for mining equipment. 77. The new SWP required the following: (a) Laser installed at a distance of at least 7.5 metres behind the five metre mark (this is to allow enough space for the loader to exit the stope so that the cab is on a safe side of the five metre mark from the brow); (b) A second laser installed at a distance behind the first laser to be determined in the JSA for the stope. However, this distance must always be at least five metres behind the first laser in all instances but may be more if the conditions of the draw point require it. 78. Inspectors Greg Welsh and Bob Johnson of the Department of Primary Industries completed a compliance audit on 16 February 2007 in relation to the safety systems for the operation of LOS remote LHDs. The audit showed that the safety systems at the mine were adequate for the safe conduct of remote LHD operations. It was noted that the standards required for competency must be formalised. Consequences of Perilya's acts and omission 79. As a consequence of its acts and omissions as particularised in particular (d) in the charge, Perilya contravened s.8(1) of the Occupational Health and Safety Act 2000. Those acts and omissions placed Mr Symond's safety at risk and he suffered fatal injuries. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.