Industrial Court of New South Wales CITATION: Inspector Howard v Connell Wagner Pty Ltd (No 2) [2009] NSWIRComm 200 Inspector Dennis Howard (Prosecutor) PARTIES: Connell Wagner Pty Ltd (Defendant in IRC 2006/2576) CW-DC Pty Ltd (Defendant in IRC 2006/2579) FILE NUMBER(S): IRC 2576 and 2579 of 2006 CORAM: Staff J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY – prosecution under s 8(1) and s 10(1) of the Occupational Health and Safety Act 2000 – Cross City Tunnel Project - defendants engaged to provide design consultation services to constructors of the tunnel - roof collapse in Bypass Ventilation Tunnel - fatality - sentencing - objective seriousness - risk of serious injury - foreseeability - simple remedial measures - general and specific deterrence - subjective features - contrition - co-operation with WorkCover - good corporate citizenship - no prior convictions - penalty imposed - moiety - costs Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Occupational Health and Safety Act 2000 Inspector Howard v Connell Wagner Pty Ltd [2009] NSWIRComm 94 Cameron v The Queen (2002) 209 CLR 339 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Postiglione v The Queen (1997) 189 CLR 295 R v Gorman (2002) 137 ACrimR 326 Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 Veen v The Queen (No 2) (1988) 164 CLR 465 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 HEARING DATES: 12 October 2009, 13 October 2009 DATE OF JUDGMENT: 26 November 2009 Mr J Agius SC with Mr R Reitano of counsel and Mr B Docking of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr M Scott (Defendants) Sparke Helmore Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Thursday 26 November 2009 Matter No IRC 2576 of 2006 INSPECTOR DENNIS HOWARD v CONNELL WAGNER PTY LTD Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 2579 of 2006 INSPECTOR DENNIS HOWARD v CW-DC PTY LTD Prosecution under section 10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 200 1 On 29 July 2004, a roof collapse occurred during the construction of the Cross City Tunnel in what was known as the "Bypass Ventilation Tunnel – Mainline" ("MVT-1 East") resulting in a fatality. The collapse occurred in the ventilation tunnel which runs from Kings Cross to Darling Harbour at approximately chainage of work 1230. 2 In February 2002, the Cross City Motorway Consortium ("CCM") was announced as the successful tenderer for the Cross City Tunnel Project ("CCT Project"). CCM engaged a joint venture between Baulderstone Hornibrook and Bilfinger Berger ("BHBB"), two international constructors, to construct the tunnel. At this time, Connell Wagner Pty Ltd ("Connell Wagner"), which changed its name on 13 March 2009 to Aurecon Australia Pty Ltd ("Aurecon"), provided multi-disciplinary consulting practices, including dedicated design consultancy services. 3 Connell Wagner supplied labour to CW-DC Pty Ltd ("CW-DC"), which was established in 2001, and provided highly specialised consulting services to design and construction contractors in the infrastructure market. CW-DC was a wholly owned subsidiary of Connell Wagner. Connell Wagner supplied labour to CW-DC for the CCT Project so that CW-DC could carry out design work, for which it had been engaged, pursuant to a Consultancy Agreement entered into with BHBB. 4 CW-DC's primary role on the CCT Project was the provision of investigation (geotechnical and pre-design survey) and the design and documentation of most civil engineering aspects of the CCT Project. 5 In order to carry out its role on the CCT Project, Connell Wagner supplied a Design Management team to CW-DC ("DM team"). It also provided BHBB with a Construction Stage Services team ("CSS team"). This team was led by Mr Hans Bleuler, the Construction Stage Services Manager for CW-DC ("the CSS Manager"). Mr Timothy Rheinberger was CW-DC's Senior Geologist on the CCT Project. He was responsible for co-ordinating geological mapping and documentation and reported directly to Mr Bleuler. Mr Rheinberger was assisted by two geologists on the CCT Project, Mr Peter Hartcliff and Mr Shaun Ayshford. The charges - prosecution of Connell Wagner 6 Connell Wagner, in an amended application for order, was charged with breaching s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") with failing to ensure that: Between 22 July 2004 and the end of the day shift on 29 July 2004 in the "Bypass Main Vent Tunnel 1 East" the health, safety and welfare at work of all its employees, in particular, Shaun Anthony Ayshford, Peter Guy Hartcliff, Timothy James Rheinberger and that the systems of work and work environment were safe and without risks to health. 7 The particulars to the amended application were: 1. Between the 22 July 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel – Mainline"' was driven east from about chainage 1190 to the site of the rockfall ("the section of MVT1 East"). 2. There was a risk of injury to the defendant's employees in the section of MVT1 East from chainage 1190 to the site of the rockfall being struck from a tunnel roof failure or rockfall, or both. 3. The defendant's business or undertaking was that: a. The defendant was the ultimate holding company of CW-DC Pty Ltd (ACN 009 310 169) ("CW-DC"). b. Baulderstone Hornibrook Bilfinger Berger Cross City Tunnel Joint Venture ("BHBB") entered into a "Pre-Contract Agreement" with the defendant to provide consultancy services for the Design and Construct ("D&C") tender submitted by BHBB. c. On 26 February 2002 the defendant signed a "Labour Hire Agreement" with CW-DC in which CW warranted to provide all the staff or labour and support facilities reasonably required by CW-DC to perform the services requested by CW-DC's client for the duration of the project. d. On 16 September 2002 BHBB, the defendant and CW-DC entered into the "Connell Wagner Collateral Deed", which required the defendant to ensure that, at no additional cost to BHBB, the defendant was to provide CW-DC with sufficient resources by way of design management and professional staff, design and quality management systems, computer software, intellectual property and all other technical resources necessary for CW-DC to perform the Consultancy Agreement for the duration of the project works. e. The defendant required CW-DC to adopt it's OHS system. f. The defendant pursuant to the labour hire agreement, provided employees to CW-DC responsible for two phases of work, namely, design work and construction stage services. g. The defendant's employees hired to CW-DC in the design phase completed "Cross City Tunnel - Tunnel and Shaft Excavation and Primary Support Specification Driven Tunnels (DT) Design Lot G-645-DT" dated 1 October 2003. h. The defendant's employees hired to CW-DC as its design team reviewed the comments received from BHBB, the RTA and Hyder Consulting (Australia) Pty Limited, the Independent Verifier ("IV"), on the Concept Options, Concept Design, Preliminary Design and Detailed Design Reports for MVT1. i. The defendant's employees hired to CW-DC as its design team completed and provided to CW-DC the "Cross City Tunnel Final Design Report (IFC) Driven Tunnels (DT) Design Lots T-060-DT, T-061-DT, T-062-DT, T-063-DT and T-070-DT Bypass Vent Tunnel – Mainline, Bypass Vent Station, Eastern Connection and Alignment" dated 18 November 2003. The documentation was certified and issued for construction by the BHBB CCT Joint Venture. j. The defendant's employees hired to CW-DC in the design phase, effective from about December 2003, had a role focused on managing and co-coordinating a response to written communications between the contractor and designer through the Request for Information (also known as RFI) system. k. On 5 April 2004 CW-DC provided its "Cross City Tunnel Construction Stage Services Work Plan" ("the CSS Work Plan") as "Reference 584S/Revision 05". l. The defendant's employees hired to CW-DC were key staff in the "CW-DC CSS Core Team" including, as described in the CSS Work Plan, Construction Stage Services Manager Hansdrudolf Walter Bleuler, Senior Engineering Geologist Timothy James Rheinberger, Geologist Peter Guy Hartcliff and Geologist Shaun Anthony Ayshford. m. The defendant's employees hired to CW-DC could issue an "Observation" in a Site Visit Report, "Dispositions" in a Site Visit Report, an "Action Required" in an Inspection Action List, a Designer's Recommendation or correspondence to the correspondence project centre register. 4. Aspects of the defendant's unsafe systems of work and work environment were any of the following: a. The defendant failed to ensure that any adequate roof support was installed from chainage 1190 MVT1 East in order to prevent or minimise the risk of rock fall or roof collapse or both. b. The defendant permitted its employees to work in the MVT1 East from chainage 1190 to the site of the rock fall in circumstances where no adequate roof support was installed. c. The defendant failed to ensure that its employees brought to the attention of BHBB that no adequate roof support was being installed in the MVT1 East from chainage 1190 to the site of the rock fall. 5. The failure of the defendant caused its employees to be exposed to a risk of fatal injury from rock fall between chainages 1190 to 1230. 8 Connell Wagner pleaded guilty to the charge. Prosecution of CW-DC 9 CW-DC, in an amended application for order, was charged with breaching s 10(1) of the Act by failing to ensure that: Between 22 July (chainage 1190) and the end of the day shift on 29 July 2004 in the "Bypass Ventilation Tunnel – Mainline" of the Cross City Tunnel Project at Sydney, controlled these premises not used only by employees of the defendant, not occupied only as a private dwelling, and controlled in the course of a business or undertaking, and used by people as a place of work, in particular, Shaun Anthony Ayshford, Gary Don Campbell, Ian Michael Coombs, Eamonn Anthony Devine, Abraham Kira Dinsdale, Adam Nathan Hargreaves, Peter Guy Hartcliff, Peter David Hooker, Frank Anthony Horky, Manfred Karl Lechner, Nicolaos Liras, Trevor Bruce Love, Robert Allan McMeekin, Neville David Ngawati, Nigel Walter John Pohio, Timothy James Rheinberger, Kokiri Kihirini Ronaki, Robert Edward Mau Seymour, Ronald Arthur Shores, Barrie John Stewart, Jon Moetatua Tiwha, Landis Blain Ormond Winitana and John Phillip Wither, that the premises were safe and without risks to health. 10 The particulars of the amended application were: 1. Baulderstone Hornibrook Bilfinger Berger Cross City Tunnel Joint Venture ("BHBB") on about 16 September 2002 entered into the "Consultancy Agreement" with CW-DC and it required CW-DC, for the Cross City Tunnel project, to provide design services, as well as Construction Stage Services (CSS) at a fee of $19.5 million (excl. GST). The scope of the Construction Stage Services was outlined in Schedule 2 of the Consultancy Agreement. 2. As part of carrying out the CSS, CW-DC provided personnel to attend the MVT-1 East Tunnel to undertake face and wall mapping and to undertake an assessment of the geological conditions in the Tunnel. These tasks were carried out by either one of three persons: (a) Tim Rheinberger; (b) Peter Hartcliff; or (c) Shaun Ayshford. These tasks were carried out between the two tunneling shifts when no other work was being performed by the tunneling crews. The tunneling shifts operated two 11 shifts with a break occurring between 8-10am each day. However, there was nothing to prevent CW-DC personnel entering the tunnel at other times to carry out inspections and assessments of the geological conditions present in MVT1 East. CW-DC personnel (Mr Rheinberger) entered the tunnel at other times to carry out inspections and assessments of the geological conditions present in MVT-1 East 3. The MVT1 East tunnel reached its nadir at approximately chainage 1190 and commenced an upward drive at approximately a two degrees elevation. Between chainages 1195-1208 some mechanical support was installed into the roof of the MVT1 East Tunnel by the installation 17 of rock bolts in a random pattern, known as Type 1. Whereas if Type 2 pattern bolting had been installed through this chainage, as indicated on the Issued for Construction drawings contained within the Final Design Report, this would have resulted in the installation of 27 rock bolts in the same area. Between chainage 1196- 1999 rockbolts were installed in such a way that the effect in terms of roof support was similar to that provided by Type 2 pattern bolting. However, from chainage 1199 to 1208 only 8 rock bolts were installed into the roof. No mechanical roof support was installed from chainages 1190–1195 and 1208 to the site of the rockfall. The last occasion when CW-DC personnel assessed the geological conditions of the MVT1 East tunnel was at approximately 8.30am on 29 July 2004 when the tunnel was at chainage 1225.7. 4. The premises were unsafe from chainages 1190 to the site of the rockfall because there was a risk of rockfall from the roof due to the absence of adequate roof support. Further, it was known that layers of laminate were present in the roof and no mechanical support had been installed to assist in containing such laminate layers, between chainage 1190-1195 and 1208 to the site of the rockfall. 5. In respect of the section of MVT1 East from chainage 1190 to the site of the rockfall the defendant failed to record on the site visit reports and/or the working action list that the as installed roof support was inadequate in that it was Type 1 roof support and did not comply with the design intent as reflected in the Issued for Construction drawings and design lot. 6. The defendant failed to indicate to the constructors that the Type 1 roof support which had been installed from chainage 1190 in lieu of the Type 2 roof support as indicated on the Issued for Construction drawings was inadequate and posed a risk of roof collapse or rockfall. 7. The failure of the defendant contributed to the creation of the risk of the rock fall that caused the death of Ronald Shores. 11 CW-DC pleaded guilty to the charge. Course of the proceedings 12 The applications for order were filed on 27 June 2006 and were initially listed before Staunton J on 24 August 2008. Much of the delay arose through negotiations that occurred between the prosecutor and the defendants regarding the initial charges and particulars. The defendants also filed a notice of motion seeking orders that the prosecutor provide further and better particulars and that two questions be referred to the Full Bench pursuant to s 5AE of the Criminal Appeal Act 1912. This application was unsuccessful: Inspector Howard v Connell Wagner Pty Ltd [2009] NSWIRComm 94. 13 Ultimately, the defendants pleaded not guilty to the charges and six weeks were reserved for the trial. On 10 August 2009, the first day of the trial, the prosecutor filed amended applications for order in each matter and advised that it did not intend to proceed with a charge brought pursuant to s 8(2) of the Act against Connell Wagner. The defendants entered pleas of guilty and dates were fixed for the sentencing hearing. Agreed statement of facts 14 Mr J Agius SC appeared for the prosecutor with Mr R Reitano of counsel and Mr B Docking of counsel and tendered an agreed statement of facts. 15 Mr M Scott of counsel appeared for the defendants, and although not objecting to the tender of the agreed statement of facts, submitted that as the charges were confined to a period of time between 22 July 2004 and 29 July 2004 and a chainage of work from chainage 1190 to the rock fall which was agreed between the parties as being at chainage 1230 and 1231, matters that arise prior to 20 July 2004 and prior to chainage 1190 were not matters that should have been included in the agreed statement of facts. Essentially, Mr Scott was concerned that if matters referred to outside the relevant dates and chainage as set out in the charges were used to criticise either of the defendants, that the Court may be led into error in having regard to matters which were outside the scope of the charge and also the particulars. Such matters were contained between paragraphs 85 and 107 of the agreed statement of facts. 16 Mr Agius submitted that the majority of the material complained of in the statement of agreed facts was included because it was necessary to put the incident that occurred between chainage 1190 and chainage 1231 in context in terms of time and in terms of how the tunnel came to be in the situation that it was during the relevant period (22 July 2004 to 29 July 2004), otherwise it was submitted that there would be an illogical gap. Mr Agius submitted that the prosecutor was not seeking to have any additional penalty imposed upon either of the defendants for what occurred before chainage 1190. 17 I advised the parties that I proposed to approach the material the subject of the concerns raised by Mr Scott with caution, noting that the prosecutor did not seek any additional penalty in respect of anything that occurred prior to chainage 1190 and/or before 22 July 2004. 18 The agreed statement of facts stated: ... 2. At all material times, Connell Wagner Pty Ltd (ACN 005 139 873) (Connell Wagner) was a duly incorporated company with its registered office in Australia at Level 12, 60 Albert Road, South Melbourne, Victoria. 3. At all material times, CW-DC Pty Ltd (ACN 009 310 169) (CW-DC) was a duly incorporated company with its registered office in Australia at Level 12, 60 Albert Road, South Melbourne, Victoria. CW-DC is a wholly owned subsidiary of Connell Wagner. 4. At all material times, Bilfinger Berger AG (Australian Registered Body Number 081 929 473) (BB) was a foreign company with its registered office in Australia at Level 4, 13 – 15 Lyon Park Road, North Ryde, New South Wales. 5. At all material times, Baulderstone Hornibrook Pty Ltd (ACN 002 625 130) (BH) was a duly incorporated company with its registered office in Australia at Level 10, 40 Miller Street, North Sydney, New South Wales. 6. At all material times, Cross City Tunnel Pty Limited (ACN 008 288 864) (CCT) was a duly incorporated company with its registered office in Australia at Level 10, 40 Miller Street, North Sydney, New South Wales. 7. At all material times, BB and BH were the proprietors of the business name BHBB Cross City Tunnel Joint Venture registered in New South Wales under the Business Names Act 1962. 8. At all material times, BB and BH, jointly and severally, traded together as the Baulderstone Hornibrook Bilfinger Berger Cross City Tunnel Joint Venture (BHBB), an unincorporated joint venture. Background 9. Following prequalification, three tenderers were permitted by the Roads and Traffic Authority of New South Wales (RTA) to bid to build, operate, maintain and transfer the Cross City Tunnel Project with a concession period of 30 years. The Cross City Tunnel Project involved the planning, design, construction and commissioning of the east-west cross city tunnel beneath the central business district of Sydney (the Project). 10. In February 2002, the RTA announced preferred tenderer status to the Cross City Motorway Consortium (CCM). The CCM comprised CrossCity Motorway Nominees No. 2 Pty Ltd (ACN 098 445 811) (the Trustee) as the initial trustee of the CrossCity Motorway Property Trust CrossCity Motorway Pty Ltd (ACN 098 445 839) of Level 10, 40 Miller Street, North Sydney, New South Wales (the Company) Deutsche Bank AG, Cheung Kong Infrastructure Holdings and DB Capital Partners. 11. BHBB, as principal contractor, chose to sub-contract out the phases of design and construction stage services to Connell Wagner and one of its wholly owned subsidiaries CW-DC. 12. During the tender process, on or about 3 July 2001, BHBB entered into a pre- contract agreement with Connell Wagner to provide design consultancy services for the D&C tender submitted by BHBB. The pre-contract agreement contemplated that BHBB and Connell Wagner would enter into a further agreement if BHBB's tender was accepted. That further agreement became the Consultancy Agreement described in paragraph 14. 13. On or about 26 February 2002, Connell Wagner and CW-DC entered into a labour hire agreement by which Connell Wagner agreed to provide CW-DC with staff and support facilities to enable CW-DC to perform design consultancy services as requested by clients of CW-DC. The staff provided to CW-DC remained employed by Connell Wagner. 14. On 16 September 2002, BHBB and CW-DC entered into the BHBB/CW-DC Consultancy Agreement CS003 (the Consultancy Agreement) for the performance of design consultancy services so as to enable BHBB to comply with its obligations under any contract entered into by BHBB for the design and construction of the Project. As part of the Consultancy Agreement, CW-DC: (i) agreed to perform the services on the terms and conditions contained in the Consultancy Agreement (paragraph I); (ii) as part of their responsibilities undertook to perform the services to internationally accepted standards of good engineering practice used by engineers in projects of the type of the Project, exercising a high level of skill, care and attention (cl. 2 (4)(a)); (iii) agreed to provide BHBB with the necessary site resources during the construction of the works which are the subject of the Design Documentation, to confirm that the design intent is consistent with all the responsibilities accepted by CW-DC under the Consultancy Agreement (cl. 2.1 (9)); (iv) warranted that it had the skill, competence and experienced personnel available to perform the Services (cl. 2.2(1)); (v) acknowledged that BHBB was relying on the skill, knowledge, judgment and expertise of CW-DC in the performance of the services (cl. 2.2(2)), and (vi) agreed to provide Construction Stage Services as escribed in clause 2.9 and section 2.4 of Schedule 2. 15. On or about 16 September 2002, at the request of Connell Wagner and in consideration of Connell Wagner entering into the Collateral deed (the Collateral Deed) BHBB entered into the Consultancy Agreement (paragraph H of the Collateral Deed). By entering into the Collateral Deed, Connell Wagner agreed to ensure that at no additional cost to BHBB it provided CW-DC with sufficient resources, including but not limited to professional staff, for CW-DC to perform its obligations under the Consultancy Agreement for the duration of the Project (clause 3 of the Collateral Deed). 16. On 16 December 2002, BB and BH signed the Cross City Tunnel D&C Joint Venture Agreement. 17. On 18 December 2002, the RTA, the Trustee and the Company entered into the Cross City Tunnel Project Deed (Project Deed) for the finance, planning, design, construction and commissioning of the Project works and to own, operate, maintain and repair those works. 18. On 18 December 2002, the Trustee, the Company, and BHBB entered into the Cross City Tunnel Design and Construction Contract (D&C Contract) to plan, design, construct and commission the Project works under the D&C Contract. The D&C Contract sum was the fixed sum of $604,112,295 (plus GST). 19. On 18 December 2002 Hyder Consulting Pty Ltd was appointed by the RTA, the Company and the Trustee as the Independent Verifier for the Project. The Deed of Appointment required Hyder to perform the following Services (in part): · Independently verify that the Projects Works, Temporary Works and O&M Work comply with the requirements of the Project Deed, and make determinations as expressly required by the Project Deed(schedule 2 clause5.2(a)); and · Review and assess the quality of the company's work and the O&M work, and the durability of the projects works to verify compliance with the requirements of the Project Deed.(Schedule 2 clause 5.3(a)(iii)) 20. CW-DC and Connell Wagner were not aware of the existence of the above provisions regarding Hyder prior to the incident; but rather were relying on clause 2.4.3 of the Consultancy Agreement. The Ventilation Tunnel 21. In about August 2002, the RTA requested the Company and BHBB to consider the impact on its tender of an increase to the ventilation requirements for the Cross City Tunnel. 22. In about September 2002, the Company and BHBB presented a range of changed ventilation options, and it was agreed to pursue the ventilation tunnel option. The ventilation tunnel option involved the design and excavation of a dedicated ventilation tunnel for the Project. 23. The final price submitted to the RTA for the ventilation tunnel option was in the order of $35 million which included the cost of the excavation and the tunnel's support requirements. CW-DC was provided with a direction by BHBB to price the design and documentation of the MVT-1 ventilation tunnel option that CW-DC understood had been agreed between the RTA and CCM. 24. The ventilation tunnel running from Kings Cross to Darling Harbour, became design lot T-060-DT (prepared by CW-DC) known as the Bypass Ventilation Tunnel Mainline (MVT-1). MVT-1 had not been included in the original design of the Cross City Tunnel. 25. The cost of design services provided by CW-DC under the Consultancy Agreement was agreed at about $19.5 million exclusive of variations. In about January 2003 BHBB issued a variation No 9 to CW-DC for the design of MVT-1 at a fixed price of $730,000 bringing the revised cost of Consultancy Agreement fees to about $20.3 million at that stage. 26. CW-DC commenced the preparation of design lot T-060-DT in February 2003 and completed it in stages issuing a final design report and drawings for MVT-1 in November 2003. The excavation using a Roadheader 27. Under the Design and Construct Contract, BHBB determined the methods of construction to be utilized in MVT-1. In that regard, BHBB determined that MVT-1 was excavated using a Mitsui S300 Roadheader (Roadheader). 28. The Roadheader is a track mounted machine with a single mainframe approximately 20.8m long, 4.0m wide and 4.1m high. It has a cutting head which rotates and is attached to a boom which can move left, right, up and down in the cutting process. There is a work platform on the boom. At the front of the Roadheader at its base there is an apron or shovel which has gathering arms which rotate to collect the spoil cut from the excavation and pull it onto a conveyor system which passes through the centre of the Roadheader to a second conveyor system or tail that discharges the spoil at the rear of the Roadheader into a dump truck. 29. Prior to the end of the shift on 29 July 2004, the Roadheader used in MVT1 was not fitted with any overhead protection device for the crew to work beneath. 30. The Roadheader crews were made up of several individuals who performed multiple tasks, such as the operation of the Roadheader, installation of rockbolts, installation of tunnel ventilation systems (vent cans), installation of services such as air and water used for drilling, and operation of dump trucks to remove spoil from the excavated face. The Roadheader crews did not include any Connell Wagner employees at any stage of the Project. 31. The Roadheader crews worked alternate 11 hour shifts approximately 9:45 am to 7:45 pm and night shift 9:00 pm to 8:00 am, with the crews usually taking one or two half hour to forty five minute breaks. 32. During the 8am to 9.45am break between shifts, Connell Wagner's geologists entered MVT-1 for the purpose of geological mapping and taking photographs. The geologists were instructed, when entering the tunnel, to walk as close as possible to the northern wall of the tunnel and to remain under the installed ventilation tubing, which was bolted to the roof of the tunnel. 33. In addition to the geological mapping, Mr Rheinberger would inspect MVT-1 from time to time. 34. At all material times MVT-1 had three different excavation faces, being East and West heading from Cross Passage 4 (CP4) and East from the Darling Harbour end of the tunnel. One Roadheader operated at each of the three faces. 35. The design applicable to MVT-1 was contained in the Final Design Report (IFC) Driven Tunnels (DT) dated 18 November 2003 Reference 584C/IFC-T-LG5-DT Revision A. The design drawings contained within the report identified three alternative types of roof support using rockbolts and shotcrete which were identified as Type 1 Support, Type 2 Support and Type 3 Support (these are explained in detail below). Wherever in MVT-1 Type 1 Support was required, being random temporary rockbolts, this was undertaken using a handheld rotary drill (Wombat). The Incident 36. On 29 July 2004, (the date of the incident) Ronald Shores (Tunneller/Roadheader Operator) was working as one member of a five man crew that commenced work at approximately 9.45am. When they commenced work the face of the excavation was at approximate chainage 1225, East of CP4. The shift's work was excavating and extending air and water services in the section of MVT-1 East. All of the crew on that shift was employed by CCT. The other crew members were Barrie John Stewart (Shift Boss/Tunneller), Robert Allan McMeekin (Tunneller/Truck Driver), Kokiri Kihirini Ronaki (Tunneller/Truck Driver) and Gary Don Campbell (Tunneller/Truck Driver). Mr Campbell was away in another tunnel in the Project. 37. During that shift, Mr Stewart was Shift Boss and Mr Shores was operator of the Roadheader. Work continued without incident until around 5:00pm when excavation was stopped to install temporary bolts into the roof of MVT-1 East. At this point the face of the excavation was between approximate chainage 1225 to 1230. At the time of the incident Mr Shores and members of his crew were involved in the process of drilling a hole in preparation for the installation of a Type 1 temporary rock bolt in the roof of the tunnel above the roadheader, a machine on which they were working. The installation of Type 1 temporary rock bolts in MVT-1 East was performed from a work platform found on the boom of the roadheader. 38. Mr Stewart said: " Up until 1m, 1.5 m to the face it looked good an (sic) then it change it had a few pieces come off it, there was some pressure on it and it had come away, and pieces had dropped out. We could see the roof was changing ." Mr Shores gave Mr McMeekin a signal that they were going to bolt. Mr McMeekin moved his truck and then got up on the Roadheader. Standing near the operator's cab, Mr McMeekin saw that bolting was the right thing to do because the rock in the roof had started to crack and flake on Mr Shore's last Roadheader cut. Mr McMeekin asked Mr Shores how many bolts he was going to install and Mr Shores replied six or eight. Mr McMeekin obtained the bolts from a rack on the Roadheader. 39. Immediately prior to the incident, Mr Stewart had collared (ie placed) the drill steel in the chuck of the Wombat which was being held by Mr Shores whilst on the Roadheader's platform. Mr McMeekin swapped spots with Mr Stewart, and Mr Stewart then stepped off the boom to operate the Roadheader from the remote control location approximately 1 metre from Mr Shores. At the time of the incident, Mr Shores was operating the Wombat to drill a hole above the platform of the Roadheader in preparation for the installation of a temporary rockbolt. Mr McMeekin was on the platform behind Mr Shores, between Mr Shores and the cabin. Mr Coombes (BH's Graduate Site Engineer) had come up the Roadheader's ladder behind Mr Stewart, and Mr Eamonn Anthony Divine (CCT Shift Fitter) was working at ground level at the rear of the Roadheader. 40. Mr Stewart said: " 10 second before the incident I saw a piece [of rock] the size of my hand missing maybe 15 seconds. I was standing at the remote control and I looked up and noticed a piece the size of my hand missing, like half a dome shape missing I said we'll move back and start bolting here" and "… by the time I informed them I looked back to check the electrical cable so I could move back, and by the time I turned back it had all caved in ." 41. As Mr Shores was drilling, a large volume of rock amounting to what would have been several tonnes, broke away from the tunnel crown and fell directly onto him. He was knocked down onto the work platform and then carried over the edge of the platform with the falling rock. His body landed at ground level on the apron or shovel at the front of the Roadheader. The Wombat he was using also landed on the apron. Prior to him falling onto the apron of the Roadheader, Mr McMeekin, the man closest to Mr Shores at the time of the incident, heard air escaping out of Mr Shores and saw his eyes roll back in his head. He was pronounced dead by rescue services personnel upon their arrival at the scene. Falling Overhead Protection System and Guardrails 42. The platform on which Mr Shores worked had no mechanical system or overhead protective structure in place to protect any person on this platform from falling objects from the rock above. Handrails that were required to be in place during the installation of rockbolts from the boom had been removed in order to excavate and were laying approximately 30m back up the tunnel. With the boom in this raised position, and no handrail in place around the perimeter edge of the work platform, persons were at risk of falling more than 2.0 metres to either the apron of the Roadheader or to the tunnel floor below. 43. The work method of installing bolts from the platform was used throughout the construction of MVT-1 where the installation of Type 1 Support was installed up until the area of the rock fall giving rise to this prosecution. As MVT-1 was designed as a single drift tunnel it was always contemplated that in this tunnel workers would be required to rock bolt in this way. 44. After the incident giving rise to this prosecution, at the direction of WorkCover, overhead protection was designed and installed on the Roadheader in order to protect tunnellers working from the platform of the Roadheaders. Prior to this direction, overhead protection systems were not used to protect tunnellers working from the platform of the roadheader in the underground civil tunnelling industry. Geological conditions at the site 45. At all times it was known that MVT-1 would be excavated through bedrock which was Hawkesbury Sandstone. 46. As part of the Project site investigation boreholes were drilled at varying intervals and depths and core samples taken by a contractor engaged by CW-DC. This work was undertaken prior to the development of the design for MVT-1 by CW-DC. The Project site investigation revealed a palaeochannel feature between Yurong and Crown Streets just east of the incident site. One of the site investigation boreholes being CC142 indicated that higher than usual in-situ stresses were recorded in the bedrock beneath the palaeochannel feature. This information was provided to CW-DC when developing the design for MVT-1. 47. WorkCover engaged Mr Gregory Phillip Kotze of GHD LongMac Consulting geotechnical engineers and geologists to provide geotechnical advice to assist the investigation. Mr Kotze has provided an Engineering Geologist Report dated 12 August 2005. 48. Connell Wagner engaged Les McQueen, Geologist and Emeritus Professor Edwin Brown, who have both produced reports dated March 2009 and July 2009 (for Professor Brown) and 8 May 2009 and 29 June 2009 (for Mr McQueen). Design Documentation and Tunnel Roof Support Installations 49. On 7 November 2003, CW-DC provided the final design for MVT-1 to Hyder Consulting (Australia) Pty Limited, for verification. Between 7 November 2003 and 18 November 2003, the Final Design Report was reviewed and agreed as being appropriate for construction by RTA, Hyder Consulting and BHBB. 50. On 18 November 2003 BHBB, issued to all parties the Cross City Tunnel Final Design Report Driven Tunnels (DT) Design Lots T-060-DT, T-061-DT, T-062-DT, T-063-DT and T-070-DT Bypass Vent Tunnel – Mainline, Bypass Vent Station, Eastern Connection and Alignment (Final Design Report ). It included as "Appendix A" the Issued for Construction (IFC) drawings for MVT-1. 51. The Final Design Report contained a list of technical specifications relevant to the design lot for MVT-1 East IFC being; · Tunnel and Shaft Excavation and Primary Support Specification TS-G-645-DT-TD-001 (IFC) · Tunnel and Shaft Rock Reinforcement Specification TS-G-646-DT-TD002 (IFC). · Tunnel and Shaft Concrete Works Specification TS-G-647-DT-TD003 (IFC). · Tunnel and Shaft Waterproofing Specification TS-G-648-DT-TD004 (IFC). · Tunnel and Shaft Shotcrete Works Specification TS-G-649-DT-TD005 (IFC). · Tunnel and Shaft Probe Drilling Specification TS-G-650-DT-TD006 (IFC). · Tunnel and Shaft Grouting Specification TS-G-651-DT-TD007 (IFC). · Tunnel and Shaft Monitoring Specification TS-G-652-DT-TD008 (IFC). · Tunnel and Shaft Passive Fire Protection Specification TS-G-653-DT-TD009 (IFC). 52. The roof support installed at any tunnel location on the Project was dependent on the IFC documentation and the on going assessment of the "as found" geological conditions. Both the design and construction of MVT-1 were to be carried out based on this documentation and assessment. 53. The IFC Tunnel and Shaft Rock Reinforcement Specification required BHBB to: ' furnish and install rock reinforcement where shown on the Design Drawings. The pattern, type, length and diameter of rockbolts, and rock reinforcement shall be commensurate with rock characteristics. ' The specification defines the difference between Permanent and Temporary support as follows: "Permanent Support - For the purpose of this specification a permanent bolt is a cable or rock bolt which complies with the requirements of 100 years service life as specified in SWTC. "Temporary Support - For the purpose of this specification a temporary rock bolt is a bolt which does not comply with the requirements of 100 years service life as specified in the SWTC." 54. The IFC Tunnel and Shaft Excavation and Primary Support Specification required: "The excavations shall at all times and as speedily as possible be properly supported as shown on the Design Drawings or as otherwise required where emergent ground conditions dictate a departure from the Design Drawings . Details of ground support types are shown on the Design Drawings. All changes to Design Documentation shall require certification by the Designer. Variation of ground support type distribution following the agreement with the Designer shall not require further certification". Design Drawings are defined in this specification as: " Drawings prepared for the purpose of illustrating the design intent for the temporary and permanent works ". Consultation was defined as: "Written communication between the Contractor and the Designer through the Request for Information (RFI) process documenting both the request from the Contractor and the recommendations received from the Designer, and administered under the Contractor's quality system" . 55. Further the specification stated: "Tunnel support is designed and scheduled on the basis of the limits on advances detailed on the Design Drawings. The Designer may vary these limits in light of the ground condition as actually encountered and in light of the excavation methods actually employed and demonstrated in the Works. The conditions and methods as found could necessitate decreasing or increasing the limits ". 56. Further, the Tunnel and Shaft Excavation and Primary Support Specification stated that; "The primary support shown on the Design Drawings is indicative. The lengths and spacings of the various ground support types shown on the Design Drawings could be varied by BHBB in consultation with CW-DC as the work progressed according to the ground conditions actually encountered. The methods of work shall allow for this possibility" As noted above, the Tunnel and Shaft Excavation and Primary Support Specification authorised CW-DC to vary the anticipated Support types expressed on the design drawings in light of the ground conditions as actually encountered and the excavation methods actually employed. The assessment of the as found conditions and methods could result in changes to the anticipated support distribution. 57. Further the specification required BHBB to adhere to the sequence and timing for rock reinforcement installation as shown on the rock support and construction sequence Design Drawings. CW-DC did not provide to BHBB a dedicated construction sequence for MVT-1 East. However, generic construction sequence drawings for the Project were contained in (Design Lot T-052-DT). These drawings are referred to in Paragraph 4 – 'Construction Methodology' of the Final Design Report for MVT-1 including in the IFC documentation dated 18 November 2003. This construction sequence was for a two lane tunnel as opposed to a single lane tunnel. 58. The Cross City Tunnel – Tunnel and Shaft Rock Reinforcement Specification dated 1 October 2003 required the following: · Section1.1 clause (c) "The size of the rock reinforcement and the pattern for installation shall be as shown on the Design Drawings." · Section 1.2 clause (b): "The Contractor [BHBB] shall furnish and install rock reinforcement where shown on the Design Drawings". · Section 1.7 " all changes to Design Documentation shall require certification by the Designer." · Section 2.1.6 clause (e): "Rockbolts and Cablebolts shall be installed in number, type and location as shown on the Drawings". · Section 3.1 clause (a): "all rock reinforcement shall be in accordance with the Design Drawings…" · Section 3.1 clause (f): "The Contractor [BHBB] shall be responsible for temporary additional support measures as they relate to safety of work aspects mainly. Temporary bolts shall therefore be installed as determined by the Contractor [BHBB]. · Section 3.1 clause (g): "Locations for random bolting shall be as required to provide a safe working environment and shall be as directed by the Contractor [BHBB] in consultation with the Designer." BHBB made the decision as to the method of work to be utilised to install rock bolts in the roof of MVT-1 East. The use of temporary bolts in MVT-1 installed with hand held drilling equipment (Wombat) in lieu of permanent bolts installed mechanically (Robolter) was a construction preference based on a decision made by the Constructor. 59. The Cross City Tunnel Driven Tunnels Rock Support Specifications document No 200-SPEC-02A required BHBB within the tunnels, to select the support arrangement and excavation sequence from those included on the design drawings. The support arrangement and excavation sequence was dependent on the anticipated geological conditions indicated on the design drawings and the observed geological conditions. BHBB were permitted to install additional support if required to ensure safety of the tunnel and shaft excavations, including the stability of the tunnel face(s). 60. IFC drawing number T-DT-060-051 specified three alternative support types with reference to different categories of assumed ground conditions available for implementation in MVT-1. Each support type had a rockbolt and shotcrete component, which can be summarised as follows: · Type 1 Support – random bolts and shotcrete where required, · Type 2 Support – 2.5 metre long bolts in a 3-bolt pattern spaced at 1.5 metre centres (transverse and longitudinal) and a 50mm layer of shotcrete. · Type 3 Support – 2.5 metre long bolts in a 4-bolt pattern spaced at 1.2 metre centres (transverse and longitudinal) and a 100 mm layer of shotcrete. 61. Design Lot 060 in the Final Design Report included IFC drawings for the construction of MVT-1. One of the IFC drawings, T-DT-060-025 "General Arrangement Longitudinal Section Sht 5 of 8" specified "Anticipated Support Type" to be installed in MVT-1. This drawing indicated that from chainage 1065 to 1100 the designers anticipated that Type 1-Support would be installed. The anticipated support type from chainage 1100 to 1240 5was Type 2 Support, with the notation Support Limitation "E" which is referenced in the key on drawing T-DT-060-021, as being the Eastbound Tunnel above. This support limitation was imposed during the design process on the assumption that the Eastbound Mainline Tunnel would have been constructed by the time the MVT-1 was being constructed. This however was not the sequence of events. The anticipated support type from chainage 1240 to chainage 1340 was Type 3 Support with the notation Support Limitation "S,E" which is referenced on drawing T-DT-060-021, as being Settlement, Eastbound Tunnel above. 62. BHBB was required to install the roof support in accordance with the IFC design drawings, unless CW-DC advised BHBB to the contrary, based upon an assessment of the as-found conditions. Construction Stage Services 63. As part of the Consultancy Agreement between CW-DC and BHBB, CW-DC was required to provide design services and Construction Stage Services to BHBB. 64. The initial fee agreed for Construction Stage Services was about $1.5 million. In about September 2003 BHBB issued a variation to CW-DC increasing the fees for construction stage services including for MVT-1 to $2.1 million. 65. The Consultancy Agreement required for CW-DC to provide the following personnel: · 2 site-based geologists on a full-time basis for an estimated duration of 18 months: · 2 site engineers on a full-time basis for an estimated duration of 18 months; · 1 off-site Project Leader (CSS Manager) on a part-time basis (approximately 50% of duration) for an estimated duration of 24 months); · off-site administration. CW-DC personnel attended a number of meeting with BHBB personnel, seeking to increase the resources. On 11 July 2003, it was confirmed that the Project Leader's role would be limited to 20 hours per week. 66. On about 5 April 2004 CW-DC issued its revised Cross City Tunnel Construction Stage Services Work Plan 584S/Revision 05 (CSS Work Plan) which was applicable at all relevant times. The CSS Work Plan sets out the scope of works and procedures to be followed by CW-DC in executing their construction stage services obligations on the Cross City Tunnel Project. 66. The CW-DC Project Team is set out in Section 3 of the CSS Work Plan. 67. During the construction of MVT-1, CW-DC's was responsible, on a daily basis for mapping the geological features of the face and side walls of the Tunnel, assess the geological conditions encountered and record that assessment. This information was provided to BHBB in written form and recorded on the Project Centre. This function was at the instruction of BHBB and carried out between shifts when no other work was being performed by the tunneling crews. 68. In undertaking the construction stage services, CW-DC used different specialist teams. The CW-DC CSS Core Team was made up of a Senior Engineering Geologist, Geologists, Geotechnical Engineers and Engineers who were required to undertake daily physical site inspections and produce various mapping sheets. The CSS Work Plan required that the information collected during inspection be provided by the CW-DC CSS Core Team to the CW-DC Design Team during the construction phase. It was the role of the CW-DC CSS Manager (Hans Bleuler) to co-ordinate and supervise all CW-DC teams involved in CSS activities. 69. The CSS Work Plan articulated CW-DC's responsibilities which included (cl. 3.2 of the CSS Work Plan): i. Inspection of the site geology for driven tunnels to verify that the site geology is consistent with the design assumptions including all necessary mapping. ii. Clarification and/or interpretation of the design and issued for construction documentation. iii. Modification of the design and/or documentation resulting from unexpected site conditions. 70. If requested by BHBB, CW-DC also undertook to provide the following services: i. Review of construction related issues as requested by BHBB, RTA. ii. Modifications of the design and/or documentation resulting from non­conformance of construction with the design documentation, changed construction methods and other influences outside the control of CW-DC. (cl. 3.2 CSS Work Plan). 71. The CSS Manager was primarily responsible for the overall management of the construction stage services team, including providing technical support, managing site inspections and reviewing construction stage services. (cl. 3.2 page 6 CSS Work Plan). 72. CW-DC Site Engineers were responsible for surveillance, report and design together with providing support to the CSS Manager for the delivery of construction stage services for civil and structural works. (cl. 3.2 page 7 CSS Work Plan). 73. Early on in the project BHBB representative Albrecht Mueller posed the use of an 'Instruction for Rock Support' (IRS). The IRS was to be filled out prior to changing the Support Type and to assist everyone involved to know what support type was currently installed in the different drives. The IRS was to be signed by representatives of BHBB and CW-DC to prove that the support type was chose by BHBB in consultation and agreement with the designer (see Volume 2, Tab 8 of Prosecution Brief – RFI dated 20 June 2003). This system was not in use during the period of the charges. 74. CW-DC Geologists and Geotechnical engineers were responsible to record and assess the "as found" conditions, record and make interpretation with regards to the assumed ground condition used for the design of the structures and to provide forward intelligence to allow the contractor to plan works (cl. 3.2 p7 CSS Work Plan). 75. The CSS Work Plan also represented that the CW-DC Senior Engineering Geologist's particular duties and responsibilities included "Review and assess ground support on a daily basis, confirming the support is in accordance with the design documentation." At all material times, this position was filled by Mr Rheinberger (cl. 3.3 Authorities of key personnel 2nd dot point). Communication Systems on Site 76. There were a number of communication systems developed to facilitate communication between CW-DC and BHBB during the construction process. These systems were outlined in the CSS Work Plan: i. Daily Mapping Sheets were prepared by CW-DC after inspections of the walls and faces of the tunnels.. This information was provided to BHBB both in hard copy and electronic form on a daily basis and on a 15 metre basis. ii. The CSS Work Plan required CW-DC site engineers to prepare and issue Site Visit Reports (SVR) and Action Lists (AL). SVR's were used to inform BHBB of CW-DC observations of the "as found" geological conditions and dispositions of actions to be taken. AL were issued to communicate any action to be taken following observations made by CW-DC personnel and noted in the disposition section of the SVR. These communications were to be sent to the Project centre register which could be accessed by both CW-DC and BHBB personnel (p15 CSS Work Plan & Appendix D of CSS Work Plan). iii. Request for Information (RFI). This was a written system whereby BHBB could raise issues regarding clarification and change of design documentation. iv. Non Conformance Reports (NCR) could be used by BHBB when a non-conformance issue arose. NCR required the input of the CSS Manager and consultation of the CW-DC design team as notified by BHBB and were to review corrective actions taken and proposed remedial actions advised by BHBB (cl. 4.2 CSS Work Plan dot point 8 and 5.5 NCR procedure). v. CW-DC was required to provide advice on actions to be taken by BHBB with regard to non-conformances occurring during the performance of BHBB's construction works. (cl. 4.1.3 p10 CSS Work Plan). CW-DC was required to provide BHBB with a request for remedial action where CW-DC believed a potential non-conformance existed. This included action to be taken and recorded in the AL attached to the SVR, which could lead to potential non-conformances or non-compliances with the design intent. (cl. 4.2 CSS Work Plan dot point 10). vi. Immediate Action Procedure which required BHBB to make an assessment regarding unforeseen conditions and upon a determination that the unforeseen condition presented a major safety or construction issue to stop work and contact the CSS Manager, in order to conduct an inspection, undertake a risk assessment and resolve the issue (cl. 5.6 p21 & p22 CSS Work Plan). vii. Weekly CSS meetings which were attended by CW-DC and BHBB personnel. 77. CW-DC personnel worked in the vicinity of BHBB personnel both underground and in shared site offices. As a consequence, CW-DC personnel were able to raise any issue or problem identified by them at any time with BHBB personnel including senior BHBB management and vice versa. 78. CW-DC, provided, during the charge period daily face maps on 22,23,26,27,28 and 29 July 2004 and a 15 metre map identified, amongst other things that the support being installed was a 'random temp bolts' and that the design support limitation was '2/E'. Construction of MVT-1 79. Geological inspections on the Project were undertaken by CW-DC predominately each morning over a two hour period between shifts. This assisted tunnelling operations. Thus, tunnelling excavation could continue for up to 24 hours prior to any assessment of the as found conditions. It was the practice of CW-DC to visit the face of MVT-1 East once per day usually around 8.30am but they were not limited to one visit to the face in any 24 hour period. 80. As stated above, the design drawings issued for MVT-1 contained three roof support types and anticipated support distribution. The designers were permitted and authorised to vary these limits in the light of the ground conditions actually encountered and in the light of the excavation methods actually employed and demonstrated in the works. The conditions and methods could necessitate decreasing or increasing the limits. This review of the as found conditions in the tunnel was undertaken by CW-DC on a daily basis. These inspections were performed by either Mr Rheinberger, the Senior Engineering Geologist, Mr Hartcliff, Geologist, and/or Mr Ayshford, Geologist, and involved photographing, mapping of the face walls and crown, and documenting geology. 81. Mr Bodner a senior tunnel designer employed by Connell Wagner and retained by CW-DC to work on the Project, explained CW-DC's geological mapping: "Our geologists visit all active headings on a daily basis and record the rock mass characteristics on what we call a geological mapping sheet. Typically that happens first thing in the morning where our geologists visit the headings, record graphically what they see in terms of geological structure and also take photographic images of the face and the wall at that point in time. They would also measure their chainage using a measure tape which would allow them to establish the respective chainages in the areas which are to be mapped. They also use a geological compass to record the orientation of joints and any defects they may identify. " 82. All geological inspection data was taken to the CW-DC office. The other geologists would tell Mr Rheinberger about any inspections they had performed. 83. These daily tunnel inspections resulted in the production of various maps and the issue of Site Visit Reports (SVRs) and Action Lists (ALs). Even though daily tunnel inspections were conducted, the various maps, SVRs and Als were not produced daily and were produced when necessary. BHBB was required to install support in accordance with the IFC documentation. When, following a site inspection, CW-DC's CSS personnel observed the need for specific support requirements for a particular section of the tunnel. That observation would be included in a site visit report which may then lead to n action list item. These were then conveyed to BHBB. The Type and pattern of roof support to be used in MVT-1 East was relayed down the line from CW-DC to BHBB CCT JV Site Engineers, to the Tunnel Superintendent, who then passed on the information to the Shift Bosses of the roadheader crews. BHBB CCT JV Engineers put the design drawings into a specific form for the crews to understand the rock support to be installed. 84. On 19 April 2004, excavation of the junction of MVT-1 and CP4 commenced. This junction is at approximate chainage 960. CW-DC's Geotechnical Engineer, Mr Carson undertook a site inspection and entered an action item on the AL MVT-1-101 as follows: 85. On 21 April 2004, excavation of MVT-1 East commenced just past the intersection of MVT-1 and CP4 at chainage 976. Mr Carson undertook a site visit inspection of MVT-1 East and entered a further action item on the AL MVT-1-102 as follows: 86. Mr Carson undertook further site visit inspections on 22 and 23 April but made no further entry on the AL. 87. On 28 and 29 April 2004 Senior Engineering Geologist, Mr Rheinberger, undertook a site visit inspection of MVT-1 East and made no entry on the AL. 88. On 30 April 2004, Mr Rheinberger undertook a site visit inspection of MVT-1 East and assessed the as found conditions to be good quality sandstone which did not require pattern bolting. Mr Rheinberger recorded in his field notebook: " No support installed None necessary Talk to CB re reducing to spotbolting" 89. Mr Rheinberger's note of "CB" referred to Christian Bodner. Mr Bodner confirmed that it was appropriate to reduce the support in MVT-1 East, at approximate chainage 976, from Type 2 Support (pattern bolting) to Type 1 Support (random bolting). 90. Following this confirmation from Mr Bodner, Mr Bleuler on behalf of CW-DC issued a Site Visit Report No SVR-05-430 dated 30 April 2004 to BHBB which included the following advice: "...The tunnel geology in MVTI East currently comprises SST I with few obvious defects. Therefore, an opportunity exists to reduce the permanent support from type 2 (4 bolt pattern) to type I, that is, spot bolting where required to support potential wedges..." 91. Following his inspection on 30 April 2004 Mr Rheinberger entered a new item on the AL, MVT-1-103 as follows: "TJR" = Timothy Rheinberger (CW-DC) "SVR" = Site Visit Report "TBA" = To be Advised "DJC" = David Carson (CW-DC) In respect of AL item MVT-1-103, the "Target Completion Date" was noted as the same day as the "Action Identified Date" (i.e. 30 April 2004). The "Target Completion Date" was understood to mean the date by which the specified action (i.e. moving to Type 1 support) was to be performed. The "Complete Construction Date" was understood to mean the date on which a CW-DC representative had checked and confirmed that specified action had been completed. 92. Between 30 April 2004 and 18 May 2004 both Mr Carson undertook four site visit inspections and Mr Rheinberger undertook three further site visit inspections in MVT-1 East. They did not make any further entries on the AL. 93. On 18 May 2004 Mr Carson undertook a site visit inspection of MVT-1 East and entered the date "18.05.04" and the initials "DJC" in the complete construction columns for action item MVT-1-103 which appears below. 94. On 20 May 2004 Mr Carson undertook a site visit in MVT-1 East. Mr Carson did not make any further entries on the AL. 95. Between 20 May 2004 and 29 July 2004 Mr Rheinberger entered five further action items numbered MVT-1-104 to MVT-1-108. None of these action items had any entry for the complete construction. At no stage between 30 April 2004 and the date of the incident on 29 July 2004, between chainages 990 and 1225, was the entry in the "chainage to" column of the AL changed from "TBA" to a particular chainage. 96. BHBB installed Type 1 Support from approximate chainage 976 and continued to install Type I Support as the excavation proceeded in an easterly direction. 97. On or about 24 May 2004 excavation of MVT-1 East had progressed 30-40 metres from CP4 when Jon Tiwha replaced John Gardner as Tunnel Superintendent. Barrie Stewart (Shift Boss) was informed by Jon Tiwha that the rock-bolting pattern to be used in MVT-1 was Type 1 Support. 98. The tunnelling crew continued to install Type 1 support to chainage 1221 including the area of the roof collapse. There was included in this distance an area up to 81m long where no rock bolts were installed. 99. Excavation in MVT-1 East ceased on about 27 May 2004 at approximate chainage 1081 and recommenced on about 23/24 June 2004 (the shut down period). On or about 4 June 2004 during the shut down period CW-DC issued SVR 05-461 to BHBB directing that Type 2 Permanent Support be retrospectively installed between chainage 1031 and chainage 1044. There is a difference between temporary and permanent support in that permanent support meets the design life of 100 years. At that time the face position of MVT-1 East was at chainage 1081. BHBB installed Type 2 Permanent Support in compliance with this direction. No similar direction was issued by CW-DC to BHBB in respect of MVT-1 East after chainage 1044. When excavation recommenced, CW-DC carried out inspections and issued SVR and AL as required by the CSS Work Plan. 99A. BHBB installed on a random basis 17 bolts between chainages 1995-1208 as follows: · 2 bolts at 1197; · 4 bolts at 1198; · 3 bolts at 1199; · 2 bolts at 1201; · 3 bolts at 1203; · 1 bolt at 1204; · 1 bolt at 1206; and · 1 bolt at 1207. 100. Between chainage 1196-1199 rock bolts were installed in such a way that the effect in terms of roof support was similar to that provided by Type 2 pattern bolting. However, from chainage 1199-1208 only 8 rock bolts were installed into the roof. No mechanical roof support was installed from chainages 1190-1195 and 1208 to the site of the rockfall. 101. CW's employees were present and conducted face mapping and the taking of photographs at approximately 8:30am at the following chainages in the MVT-1 East drive: · 2 July 2004, the face of MVT-1East had reached chainage 1190. · On 23 July 2004, the face of MVT-1 East had reached chainage 1195.6. · On 24 and 25 July 2004 there was no construction work undertaken in MVT-1 on the CCT Project. · On 26 July 2004, the face of MVT-1 East had reached chainage 1203.6. · On 27 July 2004, the face of MVT-1 East had reached chainage 1209. · At approximately 8.30am on the morning of 29 July 2004, Shaun Ayshford, CW-DC Geologist visited the site and inspected the face of MVT-1 East. Mr Ayshford conducted an inspection photographing the geology and undertaking mapping. Following Mr Ayshford's visit no advice was given to BHBB with respect to any roof support to be installed at or about the face of MVT-1 East. This was the last occasion a CW employee was present in MVT-1 East prior to the rockfall. 102. By 29 June 2004, the face of MVT-1 East had reached chainage 1100. CW-DC's IFC drawing identified the "anticipated" support type from chainage 1190 as Type 2 Support. At no time after the recommencement of excavation in MVT-1 East on about 23-24 June 2004 did CW-DC give any advice or make any recommendation either in writing or verbally that it was inappropriate to continue installing Type 1 Support or that Type 1 Support was inadequate for the "as found" geological conditions or that Type 2 Support should be installed past chainage 1100. 103. CW-DC did not provide BHBB with a request for remedial action consistent with the CSS Work Plan in relation to the excavation in MVT-1 East after chainage 1100. Nor was it suggested by CW-DC that the installation of Type 1 support was a non-conformance or non-compliance with the design intent. 104. Daily mapping sheets were prepared by CW-DC for the face of the tunnel. These detailed the quality of the rock and identified the support being installed. The daily mapping sheets noted that the support type being installed in MVT-1 East past chainage 1100 was Type 1 support or none. CW-DC did not advise BHBB that as a result of the observations recorded in the daily mapping sheets beyond Chainage 1100 that there was a need for an increase in support from that in installing Support Type 1 to Type 2 it was failing to meet the requirements in the IFC design report and that there was an increased risk of rockfall. BHBB did not query the difference between the anticipated support indicated on the IFC drawings and the roof support observed and recorded on the daily mapping sheets. 105. BHBB and CW-DC knew that the IFC drawings indicated that the anticipated support past chainage 1190 was Type 2 and BHBB and CW-DC knew that Type 1 support was being installed past chainage 1190. 106. BHBB did not raise an RFI or an NCR with CW-DC regarding the continued installation of Type 1 Support past chainage 1100 in MVT-1 East. CW-DC personnel CW's employees were aware that Type 1 Support was being installed past chainage 1100 because they continued to carry out daily inspections of MVT-1 East for the purpose of assessing the "as found" geological conditions, preparing mapping sheets, checking support, issuing SVR and AL and verbally communicating with BHBB personnel as required by the CSS Work Plan. Further an opportunity existed at the CSS Weekly Meetings between 30 June 2004 and 27 July 2004 for representatives from CW-DC and BHBB to raise any queries or concerns with each other about the type of support being installed past chainage 1100. No issues were raised by either party regarding the adequacy of the roof support being installed in MVT-1 East. 107. On the morning of 28 July 2004, Mr Rheinberger, Geologist on behalf of CW-DC carried out, in accordance with CSS Work Plan, an inspection of the face of MVT-1 East, which was then at approximately chainage 1219, and made a note of his observations in his notebook. He assessed that Type 1 Support was appropriate for the observed geological conditions. Mr Rheinberger did not communicate this assessment to the CSS Manager at any time prior to the incident. This was consistent with the assessment that he had made that Type 1 Support was appropriate for the geological conditions observed from chainage 1100. 108. At approximately 5pm on 29 July 2004, there was a rockfall at approximately chainage 1230 back to chainage 1225. 109. No employees from Connell Wagner were present at or near the face of MVT-1 East since 8:30am at chainage 1225.7: 8 1/2 hours prior to the rockfall. 110. In the intervening period, between the last inspection and the rockfall, the tunnel had been further excavated by approximately 5 metres. 111. On the morning of 29 July 2004 Shaun Ayshford, CW-DC Geologist visited the site and inspected the face of MVT-1 East. Mr Ayshford conducted an inspection photographing the geology and undertaking mapping. Following Mr Ayshford's visit no advice was given to BHBB with respect to any roof support to be installed at or about the face of MVT-1 East. 112. CW-DC did not identify that the changed geological conditions evident from chainage 1195 rendered Type 1 Support inappropriate or that Type 2 Support should be installed. 113. Each SVR issued by CW-DC for MVT-1 bore the name of the CSS Manager, Hans Bleuler, who was responsible for its issue. As a consequence, at all relevant times, BHBB understood that Mr Bleuler was checking the observations and recommendations made by the CW-DC Geologists and Geotechnical Engineers in order to confirm compliance with the design intent as required by the CSS Work Plan. Mr Bleuler did not check each SVR that was issued to BHBB during July 2004. At no time prior to the incident was it suggested to BHBB that Mr Bleuler was not checking the SVR being one of the responsibilities assigned to him in the CSS Work Plan. 114. At all times throughout the WorkCover investigation CW-DC co-operated fully with the Inspectors investigating this matter. 115. Connell Wagner has no prior convictions under the Occupational Health and Safety Act 2000 (NSW). 116. CW-DC Pty Ltd has no prior convictions under the Occupational Health and Safety Act 2000 (NSW). Additional material tendered by the prosecutor 19 Mr Agius also tendered the following material, much of which was voluminous in light of the complexity of issues and that initially pleas of not guilty had been entered: (i) The prosecution tender bundle comprising of four folders; (ii) an engineering geological report on the fatal roof collapse in the MVT-1 of the CCT Project at or around 5.30 pm on 29 July 2004 by Mr Gregory Kotze dated 12 August 2005. The report comprised three volumes; (iii) a further report of Mr Kotze dated 23 September 2009 commenting upon views expressed by Professor E T Brown in a report obtained by the defendants; (iv) a report of Dr Phillip J N Pells of Pells Sullivan and Meynink Pty Ltd, Engineering Consultants, dated 10 July 2007, which comprised four volumes; (v) The CCT Project Final Design Report Bypass Vent Tunnel - Mainline Bypass Vent Station, Eastern Connection and Alignment, dated 11 August 2003. 20 Having considered the charges and the particulars in each matter, together with the agreed statement of facts and the evidence tendered in the proceedings, which I will now turn to deal with, I accept the pleas of guilty by the defendants, and will enter verdicts accordingly. The evidence 21 The CCT Project Final Design Report provided in drawing number T-DT-060-025 that in respect of the Bypass Vent Tunnel - Mainline Longitudinal Section between chainage 1100 to chainage 1240, Type 2 pattern bolting was required to be installed in the roof of the tunnel. Prior to chainage 1100, the drawing provided for the use of Type 1 random bolting. 22 The evidence discloses that Support Type 1 rock bolts are for class 1 sandstone and comprise random bolts and mesh where required and 50mm of still fibre reinforced ("SFR") shotcrete if bolts and all mesh are installed. Support Type 2 rock bolts are for class 2 sandstone and class 1 shale and comprise 2.5m long bolts at 1.5 m centres (3 bolts per row), 50 mm SFR shotcrete and mesh where needed. Additional fibreglass dowels are required where shotcrete adhesion does not meet the specification. Support Type 3 rock bolts are for class 3 sandstone and class 2 shale and comprise 2.5m long bolts at 1.2m centres (4 bolts per row), 100mm SFR shotcrete and mesh where needed. Additional fibreglass dowels are required where shotcrete adhesion does not meet the specification. 23 The anticipated support at the location of the fatality was support Type 2 rock bolts - 2.5m long bolts at 1.5m centres. 24 Mr Agius directed the Court's attention to what was described as "figure 6" of Mr Kotze's report. This was a drawing made by Mr Kotze after the rock fall between chainage 1170 and chainage 1230. The drawing comprised the elevation of the north side of the wall of the tunnel and the elevation of the south side wall of the tunnel and a separate drawing of the roof of the tunnel showing the geology of the tunnel. The drawing of the roof of the tunnel showed the rock fall and that there were no bolts inserted in the roof between chainage 1230 and approximately chainage 1208. Between chainage 1195 and chainage 1208, the drawing showed that Type 1 random rock bolts had been inserted into the roof. There were 17 of these bolts between chainage 1195 and chainage 1208 (see paragraph 99A of the statement of agreed facts). The drawing did not show any roof bolting being employed at chainage 1190 or at any prior chainage. The drawings of the north and south wall showed a strata of rock and bedding plane commencing at approximately chainage 1172 and proceeding into the roof in the tunnel at approximately chainage 1195 where, as a result of observing some weakness in the tunnel roof, the tunnellers have commenced to employ Type 1 random bolting until the bedding planes disappear into the roof. The bedding plane appears to emerge from the roof at approximately chainage 1212, which goes up through the roof and disappears and then comes back down through the roof at about chainage 1225, where the rock fall occurred. The drawings referred to the "bedding planes BP". The tunnellers were in the process of putting in Type 1 random bolts when the rock fall occurred. 25 The CCT Construction Stage Services Work Plan ("CSS Work Plan") dated 5 April 2004, which was prepared by Mr Bleuler, the CSS Manager for CW-DC, a Connell Wagner employee loaned to CW-DC for the CCT Project, set out at page 5 the members of the CCT Project team and their responsibilities. It provided that the CW-DC CSS core team was comprised of various personnel, including Mr Rheinberger, Senior Engineering Geologist, Mr Hartcliff and Mr Ayshford, Geologists. Mr Bleuler's duties and responsibilities stated that he was primarily responsible for the overall management of the CSS team, including providing technical support, managing site inspections and reviewing construction stage designs. His particular duties and responsibilities included, among others, "to confirm/modify the design such that it is adequate for the found site conditions." 26 The geologists/geotechnical engineers' primary role was to record and assess the "as found" ground condition, record and make interpretation with regards to the assumed ground condition used for the design of the structures and to provide forward intelligence to allow the contractor to plan his work. Their particular duties and responsibilities included: · Assess suitability of installed ground support with reference to the prescribed support based on the support rules established during the design phase. · Provide recommendations to CW-DC CSS Manager (Mr Bleuler) on requirements for additional support/change in support regime adopted. Recommendations to be forwarded to BHBB by Site Engineer; · Make an assessment of anticipated ground conditions ahead of the face. 27 The CSS Work Plan then set out the authorities of key personnel and provided that during the construction phase of the CCT Project, the following authorities were delegated to key personnel forming the CW-DC CSS team. The following specific tasks were authorised by Mr Bleuler during the construction phase of the CCT Project, as part of CW-DC's obligation under the contract with BHBB: · To confirm or modify the design such that it is adequate for the site conditions as found; · Any changes to support requirements developed during the design phase due to actual conditions encountered during the construction phase. 28 Amongst the specific authorities to be exercised by Mr Rheinberger was the authority to review and assess ground support installed on a daily basis, confirming the support is in accordance with the design documentation. In respect of the geologists, the specific authorities to be exercised were: · Record progress of the work and prepare site visit reports. All reports are to be reviewed by the CW-DC CSS Manager prior to issue to BHBB. 29 Under the heading "CSS Methodologies and Process Control", the Work Plan provided as follows: 4.1 Tasks To fulfil the Construction Stage Services objectives for the project, the following day to day tasks are to be undertaken by the CSS team: 1. Inspect the various construction areas and provide updates of the "as found" construction condition, which includes the following: · Mapping and assessing the exposed ground conditions and determination of the insitu characteristics of the rock or soil mass. Comparison of the various parameters with the design parameters developed from the inferred conditions during the design process for the various construction elements. · Provide BHBB engineering staff with advice, modifications and information regarding the adequacy of the design as documented to reflect the "as found" conditions. · Undertake ongoing review of the design with regards to the "as found" conditions as the design documentation allows. · Provide BHBB with advice on anticipated ground conditions as requested. ... 3. Provide advice on actions to be taken by BHBB with regard to non-conformances occurring during the performance of BHBB's construction works. ... 4.2 Processes and Methodologies - Driven Tunnels With reference to item 1 above the following process/methodology shall be used for the tunnelling works: · Following gathering of information and details in the field, in accordance with the procedure outlined in Appendix E, the information is formalised and recorded by the Geologists in the form of mapping sheets, photographic records and/or inspection reports. The information is provided to BHBB on a regular basis both verbally and in a written form after review by the CW-DC Senior Geologist. A record of these discussions and/pr documentation is assembled and formally submitted to BHBB on a weekly basis. · Following inspection of the work faces by the CW-DC Senior Geologist and the Driven Tunnel Engineer the adequacy of the installed support with regard to the "as found" conditions and the support limitation specified by the design is reviewed and results advised to BHBB both verbally and in written form by the CW-DC CSS Manager. This written communication consists of a Site Visit Report (SVR) complete with attached Action List. These inspections are to be undertaken on a regular basis and include every work face and are used to monitor the ongoing work and close out actions identified. A sample report form is attached in Appendix D. · Following inspection, the "as found" ground/rock conditions are reviewed and compared with the design assumptions. Where opportunities exist to provide a more economical design or construction solution as the design documentation permits, the review will be submitted to BHBB for consideration by the CW-DC CSS Manager following appraisal and verification by the CW-DC Design Team. · Provide BHBB with information of likely conditions to be expected ahead of the excavation faces. This information will be arrived at by reviewing the "as found" conditions and comparison with the "inferred" conditions developed during the design phase. This information may include anticipated changes to the ground support in response to expected features. ... With regard to 3 above the following process/methodology will be used. ... · Provide BHBB with requests for remedial action where CW-DC believes a potential non-conformance exists. This includes action to be taken and recorded in the Action List attached to the SVR, which could lead to potential non-conformances or non-compliances with the design intent. 30 Mr Kotze's report is structured in four parts. Parts A to D provide answers to a total of 33 questions put to Mr Kotze by the WorkCover Authority of New South Wales ("WorkCover"). Relevantly, at page 6 of his report, Mr Kotze answers "yes" to question 8, "at the design stage, should it have been assumed that there existed the potential danger of a rock failure from cross-passage 4 in the Bypass Ventilation Tunnel of the Cross City Tunnel?" 31 In the answer to question 9 which asked Mr Kotze "why it should therefore have been assumed, at the design stage, that there existed the potential danger of rock failure, Mr Kotze suggested that "it should have been assumed at the design stage that there existed the potential for roof instability to occur, east of cross passage 4 and beneath the palaeochannel" as a result of the influence of "higher than usual in situ horizontal stresses" arising from a "palaeochannel feature that crossed the tunnel alignment between Yurong Street and Crown Street." In answer to question 11, where Mr Kotze was asked "if there were any warning signals or signs in the 'as found' conditions of the potential danger of rock failure", Mr Kotze answers "yes" and said "during the construction stage and in particular from location 1170m to the location of the 29 January 2004 incident in the East Heading, were there any warning signals or signs in the "as found" conditions of the potential danger of rock failure?" His reasons include occurrences of both spalling and overbreak in the roof of the MVT-1 between chainages 785m and 1170m, displacement on bedding planes in both the side walls and in the haunches from chainage 1170m to 1230m and an irregular shale breccia around chainage 1215m as "a warning signal that the potential for rock failure existed." 32 Mr Kotze provided what was considered to be compelling documentary evidence by other experts, in particular Professor Brown, of spalling observed in the roof of MTV-1 East to the west of the location of the roof collapse and the presence of bedding plane defects in the roof. 33 In answer to question 17, Mr Kotze says "... The roof collapse occurred because there had been no roof support measures installed to cater for the prevailing geological conditions described above. The anticipated Type 2 pattern rock bolts had not been installed. The nearest Type 1 random rock bolt was at chainage 1207m. There were no rock bolts installed in the roof between chainages 1207m and 1231m. In the absence of any roof support, the failure mechanism described above was able to develop and the roof collapse resulted." In answering question 18, Mr Kotze says "The roof collapse of 29 July 2004 could have been prevented through the installation of a suitably designed roof support system. A suitably designed roof support system could have been installed routinely throughout MTV-1. Alternatively, through the application of appropriate ongoing technical review, evaluation and direction, the actual roof collapse incident of 29 July 2004 could have been prevented by suitably upgrading the roof support system from chainage 1170m when the conditions listed in Paragraph 12 above became evident." In answering question 21, Mr Kotze said "It would have been possible to install Type 2 pattern rock bolts as tunnelling proceeded prior to the incident." He then goes on to discuss some of the operational difficulties involved in doing this and alternative practices. 34 Mr Kotze's evidence to the Coronial Inquest consisted essentially of a reiteration and expansion of the observations and opinions expressed in his report. 35 Dr Pells, in his report at 3.3.1 under the heading "Summary of mechanism and causes", stated: The failure occurred because of concentration in the crown of the tunnel of the relatively high natural horizontal stresses at a depth of about 60m, in the Hawkesbury Sandstone. The concentration of horizontal stress in the crown was exacerbated by the presence of a 200mm to 400mm thick near horizontal bed of sandstone sandwiched between two bedding horizons comprising laminated sandstone and carbonaceous siltstone, having relatively low shear strength, planar, bedding surfaces. The excavation of the tunnel reduced the thickness of this sandstone bed to between about 100mm and 350mm, further concentrating stresses within this unit. The stresses developed within this sandstone bed were sufficiently high as to cause failure of the sandstone substance. The failure was violent, initially comprising tensile spalling, and developing into a buckling failure of the sandstone bed and overlying laminated sandstone. The particular ovaloid shape of the failure was due to 3D effects involving the presence of the tunnel face, the gentle dip to the north of the bedding planes, and the 2% upward grade of the tunnel. There was no support installed in the area of the failure that could have constrained the collapse. 36 Emeritus Professor E T Brown, a senior consultant with Golder Associates Pty Ltd, Consulting Engineers, provided a report to the defendants accepting Dr Pells' summary. 37 Dr Pells was also invited to answer a series of questions by WorkCover regarding the influence on the failure of a number of geological, geotechnical, design and construction-related features on the rock fall in the Cross City Ventilation Tunnel. His report was dated 10 July 2007. Dr Pells was asked "were there any indications in the tunnel up to the location of the failure that would point us to the collapse?" Dr Pells answered this question by referring to the roof spalling that was observed along the tunnel, typically in areas of closely bedded sandstone and laminite. In his opinion, which was also accepted by Professor Brown, this spalling was a clear indication of the existence of relatively high stresses in the tunnel crown. He also observed that the spalling failures were at least an "amber light" and may have been considered a "red light". The potential risk arising from such a mechanism, and possible mitigation measures, had been identified in the design report. 38 Dr Pells further observed at 3.3.4 of his report that the spalling that was evident at locations along the tunnel was typically in areas of closely bedded sandstone and laminite. It is considered that this spalling was "a clear indication of relatively high stresses in the tunnel crown as it was observed by PSM personnel that pieces that had fallen out had been at least partly formed by new stress-induced fractures in the rock. In other words, the pieces that had fallen out were not simply blocks formed by joints and bedding planes that had fallen like one of Newton's apples. Spalling of the type described above was anticipated in the CW-DC Pty Ltd Final Design Report - Driven Tunnels in a section titled "Risk Assessment/Safety"." 39 In dealing with the mapping and monitoring that was performed, Dr Pells observed that "it is clear that at the time of writing the Work Plan it was envisaged that ground conditions would be assessed daily by CW-DC's CSS team and daily discussions with BHBB regarding the adequacy of support and anticipated ground conditions would be held." 40 Dealing with the objectives of construction stage work, Dr Pells observed "in light of international practice, and the explicit construction-stage work set out in the Consultancy Agreement (see point 6 in Section 6.1.1, above), it is reasonable to conclude that it was within the Designer's brief to interpret information from geological mapping and ground monitoring, and on this basis confirm the design-stage support designs and excavation sequences, or make appropriate modifications. From our reading of CW-DC's Work Plan (see Section 4.7, above), CW-DC expected to observe the performance of the tunnel, compare it to what was expected in design, and to change the support if needed. This is explicitly shown in the flow chart in Section 5.1 of the Work Plan (Reference 9), included herein as Figure 6.5." 41 In answer to the questions "were the design support and associated construction sequence appropriate?" and "was the mapping and monitoring correct and appropriate?", Dr Pells stated at 6.4 of his report: As set out in Section 4.4.2, the design support over the length of MVT-1 where the failure occurred was support Type 2 and comprised: · 2.5m long bolts at 1.5m centres, and · 50mm of steel fibre reinforced shotcrete, · "installed as the excavation proceeds". There were no drawings showing the required excavation and support sequencing so it is not possible for PSM to know what was meant by the phrase "installed as the excavation proceeds". However, in the context of what actually took place, this may not be relevant because Type 2 support was not being installed at the time of the collapse. No support had been installed for about a distance of about 20m from the tunnel face. As mentioned in Section 6.3 above, the Designer's risk assessment explicitly included reference to impacts of high horizontal stress as follows: Risk Possible Mitigation Measure High horizontal stresses which may cause delamination in the crown if shale bands and other defects are present. Install convergence monitoring devices immediately after excavation and compare actual movements against predicted movements. Install mesh/shortcrete to support delamination/fretting of rock. This risk scenario substantially encapsulated what actually occurred at the collapse site. The dilemma that arises from this is that determination of the risk relied on observation in the field, presumably including the geological mapping, and mitigation involved response to those observations, including convergence monitoring. As already mentioned in Section 5.2, and discussed in Sections 6.6 and 6.7 below, there is no evidence that the geological mapping was used to deal with the risk set out above. Notwithstanding the matters set out above, it is important to consider whether, if Type 2 support had been installed, the crown collapse would not have occurred. An absolute answer to the question cannot be given because the answer partly depends on what was meant by the Designer's phrase "installed as the excavation proceeds". If the presumption is made that the Type 2 pattern rockbolts were installed from the roadheader boom, and within about 2m of the tunnel face, it is considered probable that the buckling-type collapse of the crown would not have transpired. However, stress induced spalling of pieces of rock would probably have occurred between the rockbolt face plates. 42 Included in the prosecution's tender bundle was a record of the evidence given by Mr Bleuler at the Coronial Inquest. Relevantly, Mr Bleuler's evidence was that he was not aware that pattern bolting had not been installed in the MVT-1 East tunnel after chainage 1100 until after the rock fall. He said that he should have been made aware of this by Mr Rheinberger with whom he was in daily contact. A system had been put in place for this to occur if an issue arose. Mr Bleuler's evidence was that he was never informed by Mr Rheinberger that the tunnel would proceed with structural support less than that set out in the construction drawings. 43 Mr Bleuler maintained a personal diary in which he recorded all discussions and meetings that he had in respect of the project. If there were to be a change in the mandatory support Type rock bolts, this would have required a sign off from the designer and Mr Bleuler would have noted this in his diary. He was not informed that Type 2 bolts were not being inserted from chainage 1100, and/or that this was not recorded on the site visit reports by Mr Rheinberger. 44 Mr Bleuler's evidence was that he did not see the daily mapping sheets, except when he had a scheduled inspection with Mr Rheinberger when he wanted him to look at something. Mr Bleuler was not forwarded copies of the face mapping sheets or the 15m mapping sheets. This meant that he did not see the 15m mapping sheets of the MTV-1 East tunnel at any time after cross passage 4 until the time of the rock fall, nor did he see the daily mapping sheets, although Mr Rheinberger was informing him on a daily basis of the geology of the tunnel as he believed it to be. Furthermore, he was not informed whether or not BHBB was adhering to the anticipated support types set out in the construction diagram. 45 On earlier occasions during the construction of the tunnel, Mr Rheinberger had informed Mr Bleuler that there was a lack of bolting, or no bolting present. On each occasion, Mr Bleuler took the matter up with Mr Peter Arz, Technical Director of BHBB, and Mr Arz would take the matter up with his own manager and the issue would be resolved. This did not occur (in respect of the lack of Type 2 bolting at chainage 1100). Mr Bleuler's evidence was that the CSS Work Plan required Mr Rheinberger to review and assess ground support installed, on a daily basis, and confirm that the support was in accordance with the design documentation. Mr Bleuler accepted that there was no documentation or record confirming that the ground support installed was in accordance with the design documentation. His evidence was that, in hindsight, he should have put in a column or a heading confirming the support was occurring and where it was not, recording that the support pattern was incomplete. Defendants' evidence 46 Mr Scott read an affidavit of Mr Anthony Barry, who was the New South Wales Regional Manager for Connell Wagner at the time of the incident in 2004. He was also a director of Connell Wagner and a member on the Boards of each defendant. Mr Barry was not required for cross-examination. 47 Mr Scott also tendered the following material: (i) reports of Professor E T Brown, Senior Consultant with Golder Associates Pty Ltd, Consulting Engineers dated March 2009, July 2009, August 2009 and September 2009; (ii) report prepared by Mr Leslie Bruce McQueen, Engineering Geologist, employed by Golder Associates Pty Ltd dated 8 May 2009; (iii) proposal by BHBB representative, Mr Albrecht Mueller, for the Introduction of an Instruction for Rock Support information document to be introduced dated 20 June 2003; (iv) BHBB Job Safety Analysis ("JSA") Worksheet dated 4 November 2003 (JSA No 32) with job/task described as installation of rock bolts with wombat; (v) BHBB Job Safety Analysis Worksheet dated 3 December 2003 (JSA No 44/2003) with job/task described as drilling and installation of bolts (by hand); (vi) letter from Mr John Callaghan, Project Principal, CW-DC Pty Ltd to Mr Gregory Miltenhoff, Independent Verifier's Representative, Hyder Consulting (Australia) Pty Ltd dated 29 March 2005. This letter enquired whether Hyder Consulting had undertaken an audit of the rock support installed by the constructor across the whole of the CCT Project; (vii) extract of part of Mr Rheinberger's statement given to WorkCover Inspector on 1 December 2004; (viii) part of statement given to WorkCover Inspector by Mr Bleuler on 25 January 2005; (ix) extract of evidence given by Mr Nigel Pohio at the Coronial Inquest on 20 July 2007; (x) extract of the transcript of evidence given by Mr Kokiri Kihirini Ronaki at the Coronial Inquest on 16 July 2007. Evidence of Mr Barry 48 Mr Barry stated that he commenced employment with Connell Wagner, now known as Aurecon, in 1985. He set out his qualifications and positions held, together with the history of Connell Wagner, which was formed in 1975 and initially known as Consuldata Pty Ltd. The company became known as Connell Wagner in 1994. It provides multi-disciplinary consulting practices, including dedicated design consultancy services. CW-DC was first established in 2001 to provide highly specialised consulting services to design and construction contractors in the infrastructure market. It is a wholly owned subsidiary of Aurecon. CW-DC does not employ any staff, but it seconds employees from Aurecon to carry out the requirements for its design and construction projects. Staff provided to CW-DC for a project were employed by Aurecon. 49 Mr Barry set out the background to the CCT Project. In 2002, the CCM was announced as the successful tenderer for the CCT Project. CCM immediately engaged a joint venture between BHBB, two international constructors, to construct the tunnel. BHBB engaged CW-DC to carry out design work on the CCT Project pursuant to a Consultancy Agreement. A Design and Construct Contract ("the D&C Contract") was entered into between BHBB and CCM on 18 December 2002. Neither Connell Wagner nor CW-DC was a party to the D&C Contract. 50 Connell Wagner supplied labour to CW-DC for the CCT Project so that CW-DC could perform its duties as set out in cl 2.1 Scope of Services - The Consultant in Sch 2 in the Consultancy Agreement with BHBB. A copy of this clause was annexed to Mr Barry's affidavit. 51 Mr Barry stated that CW-DC's primary role on the CCT Project was the provision of investigation (geotechnical and pre-design survey) and the design documentation of most of the civil engineering aspects of the CCT Project. Connell Wagner supplied a DM team to CW-DC on a basis agreed to by BHBB, and for which BHBB was prepared to pay. The role of the DM team was set out at Sch 3 of the Consultancy Agreement. This was a collaborative effort between CW-DC employees and those of BHBB. Part of the design process undertaken by the DM team involved the use of the "CHAIR in Design" philosophy - Construction Hazard Assessment and Implication Review ("CHAIR"). The CHAIR Review Methodology was attached to CW-DC's CCT Project specific OHS Management Plan and was annexed to the affidavit. 52 CW-DC also provided BHBB with a CSS team. The CSS team was led by Mr Bleuler, the CSS Manager for CW-DC. Mr Bleuler had over 30 years of international tunnelling experience, having been involved in more than 80 separate tunnelling projects. Between 1 April 2003 and 28 July 2004, Mr Bleuler attended the CCT Project site on approximately 149 occasions to meet with BHBB Management and on approximately 163 occasions to conduct inspections at the request of BHBB Management or the CSS team. Mr Rheinberger (CW-DC's Senior Geologist) was assisted by two geologists, Messrs Hartcliff and Ayshford. 53 During negotiations with CW-DC and BHBB regarding resources, Mr Barry said in or around May 2003 that Mr Arz expressed concern to Mr Bleuler over the lack of BHBB's budget and lack of resources to cover all of the activities of the CCT Project. Mr Bleuler submitted a new budget which sought to increase his involvement on the CCT Project to 40 hours per week. He also sought two additional geologists and one additional engineer. On 11 July 2003, at a further meeting with BHBB Management, Mr Bleuler was advised that his hours would not be increased and would remain at 20 per week. He was also advised that the budget would be increased to allow for one additional geologist. 54 It was Connell Wagner's practice on major projects, prior to the construction stage services being provided, to develop a Work Plan. The purpose of such a document was to instruct relatively inexperienced engineers and onsite personnel as to the work and responsibilities that they were to undertake. The plan was revised on several occasions, although it did not form part of the contract between BHBB and CW-DC. 55 The Consultancy Agreement between BHBB and CW-DC provided for an independent verifier to carry out regular inspections of construction and to review construction test plans and commissioning plans to verify that they were consistent with the design intent and design assumptions. This role was carried out by Hyder Consulting (Australia) Pty Ltd ("Hyder Consulting"). 56 The MVT-1 was not part of the original design for the CCT Project. It came about in August 2002 when the RTA asked BHBB and CCM to effect changes to the ventilation of the CCT. The MVT-1 was to be a dedicated ventilation tunnel to carry exhaust and not traffic. For this reason, it was significantly narrower than the mainline tunnel, being 5.1m wide and 5.5m high with a total roof area of approximately 12,500sqm. In February 2003, CW-DC was asked by BHBB to extend the scope of its services and prepare the relevant design drawings for MVT-1. The design of MVT-1 incorporated the Concept Design Report, the Preliminary Design Report, the Detailed Design Report, the Final Design Report and the Final Design Report which was marked "Issued for Construction" ("IFC"). 57 Each set of Design Reports contained a series of design drawings which set out drawings of a particular tunnel and the support that CW-DC expected the constructor to install at each relevant chainage in the particular tunnel, design issues and design lot assessment including BHBB's responsibilities, risk assessment and safety, technical specifications, outstanding items and review of comments. 58 At each and every stage of the design process, BHBB, the RTA and Hyder Consulting received interim Design Reports. A table of the Final Design Report was annexed to the affidavit. 59 The Final Design Report included two specifications: (a) the Cross City Tunnel - Tunnel and Shaft Rock Reinforcement Specification, dated 1 October 2003 ("the Rock Reinforcement Specification"), and (b) Cross City Tunnel - Tunnel and Shaft Excavation and Primary Support Specification, dated 1 October 2003. 60 The Rock Reinforcement Specification provided a description of temporary and permanent rock bolt support requirements, but did not mandate whether temporary or permanent bolts had to be installed during the construction process, with the exception of the following clauses: 3.1 General ... (f) The Contractor [BHBB] shall be responsible for temporary additional support measures as they relate to safety of works aspects mainly. Temporary bolts shall therefore be installed as determined by the Contractor. (g) Locations for random bolting shall be as required to provide a safe working environment and shall be as directed by the Contractor in consultation with the Designer. 61 The Rock Reinforcement Specification also stated at paragraph 1.2(b): The contractor shall furnish and install rock reinforcement where shown on the Design Drawings. 62 Mr Barry stated that he would have expected that BHBB was under a strict requirement to install what was shown on CW-DC's design drawings, namely Type D bolts in the pattern and locations shown. On 20 July 2003, Mr Mueller of BHBB issued a notice on Project Centre to Mr Bleuler of CW-DC, that an instruction for rock support system be adopted. Mr Mueller instructed BHBB employees that a document titled "Instruction for Rock Support" be completed by BHBB and signed by representatives from BHBB and CW-DC if they wished to depart from the design, in order to get "sign-off". This system was adopted for only a short period of time and was not pursued by BHBB prior to 29 July 2004. 63 On 18 April 2004, the excavation of MVT-1 commenced from chainage 976. MVT-1, from this chainage, was driven in two separate directions: east and west. The tunnel heading in an easterly direction was known as MVT-1 East. The question of how BHBB would construct each tunnel in the CCT Project, including MVT-1 and what equipment they wanted to use to do this, was outside the contractual parameters of the Consultancy Agreement. The other tunnels in the CCT Project, with the exception of MVT-1, were wide enough for BHBB's crews to fit two large machines side by side, one being a roadheader and the other a robolter. This allowed BHBB to excavate part of the face of the tunnel (with the roadheader) and then immediately bolt (with the robolter) the roof of the tunnel above the recently excavated section as the excavation proceeded. However, this construction method was not possible in MVT-1 because of its narrow profile. CW-DC, according to Mr Barry's evidence, expected that BHBB would develop an appropriate method of installing the permanent support required by CW-DC's design. 64 CW-DC raised a query at three separate stages of the design process (through its Design Reports) as to the ability of BHBB to install roof support using a bolt machine (a robolter) in MVT-1, given that it was a single driven tunnel. CW-DC noted in the Detailed Design Report and the Final Design Report the following: 3.14 Outstanding Items Receipt of the following information may result in changes to the design: The following information is required to progress the design for the Bypass Vent Tunnel: · BHBB's requirement for construction equipment passing bays (BHBB) 3.14 Outstanding Items Receipt of the following information may result in changes to the design: The following information is required to progress the design for the BVT: · BHBB's requirement for construction equipment passing bays (BHBB) ... 4.2 Information Required: The following information is required to progress the design for the Bypass Vent Tunnel: · BHBB's requirement for construction equipment passing bays (BHBB) 65 Mr Barry stated that he understood that no response was provided by BHBB, the RTA or Hyder Consulting. BHBB proceeded to issue the Final Design Report as "IFC" ("Issued for Construction") with that question unanswered. BHBB decided to install temporary roof bolts from the boom of the roadheader with a handheld bolting machine. Mr Barry said that during the Coronial Inquest into the death of Mr Shores, he became aware of minutes of a BHBB internal meeting, in which Mr Pat Doyle, Executive Director of Construction for BHBB, raised questions as to what means were in place to prevent the person installing bolts from the platform from being struck by a rock fall. A copy of the minutes dated 27 June 2003 were annexed to the affidavit. BHBB gave effect to the work method decision of installing roof bolts by the creation of a Job Safety Analysis ("JSA"). The original BHBB JSA (No 32) for the task of "Installation of rockbolts with wombat", dated 4 November 2003, stated that the potential hazard is being "struck by rock fall". The control measure for this risk was stated as follows: Bar down loose rock, check for drummy areas. Pay attention to rock conditions whilst drilling. Access to face and around bolting operation to be restricted, safe egress whilst drilling and work from underneath previously supported ground towards the face. 66 A further BHBB JSA (No 44) for the task of "Drilling and Installation of bolts (by hand)", dated 3 December 2003, stated that it applied specifically to work location "MVT-1". This JSA identified the same control measure, but for the omission of the words "work from underneath previously support (sic) ground towards the face." During the Coronial Inquest, Mr Barry said that he became aware that BHBB individuals, and the joint venture itself, were to be paid bonus payments if they completed the construction of MVT-1 at an earlier than agreed date. CW-DC was not privy to any such arrangement between BHBB and the CCM. 67 Mr Barry detailed the general occupational health and safety system at Connell Wagner as at 29 July 2004. It had adopted a "systems based" approach, using the Australian and New Zealand Standard AS/NZS 4801 OHS Management System Elements for guidance. This Standard was published in 2002. Its Occupational Health Safety and Rehabilitation ("OHS&R") Management System was certified on 18 November 2002 as complying with the requirements of the Standard. Connell Wagner's OHS Management Systems were formally adopted by CW-DC in February 2002. A copy of the relevant Board paper and minutes were annexed to the affidavit. 68 The Connell Wagner OHS&R Management System comprised the following documentation: (a) Connell Wagner OHS&R Manual; (b) Project Specific OHS&R Management Plan; and (c) Occupational Health and Safety Documents: (1) OHS Policy; (2) Safe Working Guidelines; and (3) OHS&R Forms and Checklists. 69 Mr Barry set out the OHS&R requirements found in the 2004 Manual, which was annexed to his affidavit. On 29 November 2002, CW-DC submitted to BHBB its Project Management Plan which was prepared specifically for the CCT Project. It detailed resources and responsibilities to be implemented for the CCT Project including: (a) Management Responsibility; (b) Subcontracting; (c) Risk management and Safe Work Methods: (d) Inspection and testing; (e) Incident Reporting, Rehabilitation, First Aid and Emergency Plan; (f) Corrective Action; (g) Hazardous Substances and Manual Handling; (h) Training; (i) OHS&R Records; (j) Design OHS&R Plan, Design OHS Verification and Verification Responsibilities; and (k) Safety Performance Monitoring. 70 The Project OHS&R Management Plan also outlined the investigation (geotechnical, engineering and survey) and design aspects of the work to be undertaken by CW-DC on the CCT Project. Annexed to the affidavit was the Project OHS&R Management Plan, together with the extensive Appendices. 71 Connell Wagner's Occupational Health and Safety Policy was also annexed to the affidavit. It included safe working guidelines, which addressed numerous working conditions, together with OHS&R forms and checklists. All Connell Wagner employees received induction training upon commencement of their employment. Copies of general OHS induction documents dated June 2004 and the Office Safety Handbook dated July 2000 were annexed to the affidavit. The information in this material was also accessible on the Connell Wagner intranet. Employees were also required to participate in a Quality, Health and Safety Induction and received a further Induction Training Handbook, a copy of which was annexed to the affidavit. 72 Connell Wagner employees who attended construction sites in New South Wales were also required to undertake specific induction training which included New South Wales Construction Induction and Risk Assessment for Supervisors and Managers. In addition to the induction training, employees who attended the CCT Project were given further induction and training through "safety huddles" and CCT Project Induction Training. Mr Rheinberger conducted "safety huddles" (also known as "toolbox talks") for the CSS team in the William Street site office on a weekly basis. CW-DC site based employees, Mr Ayshford and Mr Hartcliff undertook the WorkCover NSW OHS General Induction for Construction on 16 September 2003. Mr Rheinberger undertook this course on 19 November 2001. All CW-DC site-based employees including Mr Ayshford, Mr Hartcliff and Mr Rheinberger, attended the BHBB Project Induction. A copy of the "BHBB Cross City Tunnel – Project Induction" dated 6 November 2002 was annexed to the affidavit. 73 All CW-DC employees also attended the BHBB Zone Inductions carried out by respective BHBB Zone OHS Managers. Mr Rheinberger (and some other members of the CSS team) attended a Construction Stage Services Site Inspection Briefing WorkShop with some members of the DM team on 30 April 2003. Mr Bleuler presented on the Construction phase organisation and on the CW-DC Safety Induction. 74 Mr Barry detailed the safe work practices relevant to Connell Wagner and CW-DC employees working on the CCT Project. This included the geologists undertaking a three week supervised on the job training. During this time the less experienced geologists were instructed by the more experienced CW-DC personnel including where to work and stand in the tunnels and how to safely undertake their duties. Mr Bleuler prepared a "Site Inspection Safety Guide" which was annexed to Mr Barry's affidavit. A Project Review Committee was established by the Boards of Connell Wagner and CW-DC to oversee the CCT Project. The committee met on a quarterly basis. Each Work Area Leader of the CCT Project was required to present to the Committee. A Request for Information ("RFI") process was introduced. Throughout the CCT Project, BHBB made 2500 separate queries of CW-DC in the form of RFI's, both as to the design and construction of the CCT Project. 75 Each Monday Mr Bleuler and Mr Rheinberger would attend a monitoring meeting with BHBB employees and the subcontractor surveyors on site. On Tuesday mornings Mr Bleuler would attend a Management Meeting with Mr Arz of BHBB. The purpose of this meeting was to discuss issues arising during the week on the CCT Project. Mr Bleuler also attended design meetings with Mr Arz and representatives of Hyder Consulting to present alternatives to the design. Connell Wagner also had Health and Safety Committees which met bi-monthly and were comprised of employees and a management representative. Minutes were taken at each meeting. Sub-committees were also established to review safety incidents and identify opportunities for improvements. An example was the Incident Review Sub-Committee which was established in June 2004. External and internal audits were also undertaken of the CCT Project. On 30 March 2004, Mr Hugh King, Quality Manager for BHBB undertook an audit of CW-DC's Construction Stage Services requirements based on the CSS Work Plan. This was the fourth audit conducted with CW-DC and the first to address CW-DC's Construction Stage Services. The audit covered the range of services included in the Work Plan including geological mapping, monitoring, testing and inspection on site. No corrective action request records were raised by BHBB from the audit, with BHBB noting "a high degree of compliance was demonstrated." On 10 December 2003, CW-DC undertook its own audit of the CCT Project. 76 Mr Barry detailed the action taken following the incident involving Mr Shores. He stated that approximately two hours after the incident, Mr Rheinberger and Mr Scott Smith, the Site Engineer, met the NSW State Coroner at the site and escorted him down MVT-1 East. 77 On 30 July 2004, Mr Barry expressed his condolences to BHBB. On 2 August 2004, Mr Barry arranged for all Connell Wagner employees who had any connection to the CCT Project to meet in its boardroom. The employees were advised of the assistance Connell Wagner would provide. For several months after the incident, employees were encouraged to see counsellors. 78 CW-DC was unable to gain access to its site offices on the CCT Project between 30 July 2004 and 10 August 2004. Subsequently, after job safety analysis and safe work method statements were developed by the CSS team, CW-DC undertook inspections of the tunnels and provided two Reports to BHBB identifying outstanding action items detected during the inspections. The Inspection Reports were annexed to the affidavit. Dr Harry Asche, employed by Connell Wagner, undertook an analysis into the potential cause of the rock fall and provided this to WorkCover on 21 February 2005. BHBB made changes to its own work instructions which included that shift bosses and site engineers were to confirm the length and type of bolts to be installed and the excavation advance distances. CW-DC carried out a review of its work and issued a JSA/SWMS relating to the task of "Geotechnical Mapping and/or Inspection of Driven Tunnel Works" dated 23 August 2004. A copy of this document was annexed. Training was undertaken in respect of the JSA/SWMS that was introduced. 79 Upon recommencement of work in MVT-1 East, BHBB installed Type 2 Support using a robolter from chainage 1100 to chainage 1230. It also installed, as a minimum, Type 2 Support for the remainder of the MVT-1 East with two Roadheaders on which BHBB had fitted an overhead canopy to protect crew members attempting to insert rock bolts using hand held equipment from the platform of the Roadheader. This canopy was known as a Falling Objects Protection System ("FOPS"). 80 CW-DC provided BHBB with a detailed construction sequence which provided that support had to be installed with a maximum distance of four metres between the last row of bolts and the tunnel face. This was a greater distance than previously detailed in the IFC Final Design Report. The increased distance was a consequence of the operator needing to stand further from the rock face when undertaking rockbolting utilising hand held rockbolting equipment. 81 CW-DC developed and implemented two new forms at the request of BHBB for the remainder of the CCT Project; namely: (a) a Site Instruction Form to be used by CW-DC to identify non-conformances by BHBB in the tunnels on the CCT Project (14 of which were subsequently issued by CW-DC to BHBB); and (b) A Supplementary Rock Support Form to be used by CW-DC to identify areas where additional support was required. Copies of these documents were annexed. 82 One of the main changes issued by CW-DC following the incident was the issue of a "buddy system" for its CSS personnel when they were required to enter any of the tunnels on the CCT Project. This involved CW-DC's geologists being accompanied by a geotechnical engineer. 83 In addition, BHBB instructed that a night shift be introduced by CW-DC so as to allow joint inspection of the tunnels by BHBB's and CW-DC's engineers. Mr Bleuler retired from the CCT Project in August 2004. His role of CSS Manager was taken up by Mr Bodner. BHBB increased Mr Bodner's hours on the CCT Project to 40 per week. 84 Mr Barry stated that he was aware that on or around 5 June 2006, WorkCover issued a request for input into a proposed Code of Practice for Tunnelling in New South Wales. Connell Wagner prepared a detailed response to WorkCover's request. The subsequent Code of Practice reflected a substantial proportion of its response. A copy of the response was annexed. 85 Following the CCT Project, CW-DC successfully tendered for the design and construction support role on the Eastlink Project in Melbourne. The Eastlink Project was also a design and construct project with a number of similarities to the CCT Project. Mr Barry detailed the processes that CW-DC introduced in respect of this project, particularly a shared responsibility between the designer and constructor for the ongoing selection of support types as the construction progressed. CW-DC sought to learn from the CCT Project and implemented an improved system of communication between all people on the Project. The fundamental principle agreed between the parties was to encourage face crew to increase support as a unilateral decision when the rock quality deteriorated. 86 A Permit to Excavate form was introduced if it was proposed that there be a decrease in roof support. CW-DC developed specific training for the tunnel crews which dealt with geotechnical issues particular to the Eastlink tunnel. Annotated digital photographs were taken on a daily basis which provided geotechnical information in areas of potential concern to employees. A significant difference between the work performed by CW-DC on the Eastlink Project and that performed on the CCT Project was that, on the Eastlink Project, the geological mapping was undertaken by a contractor, not by CW-DC. A dedicated tunnelling engineer and an engineering geologist were based in the tunnel on a fulltime basis at the suggestion of CW-DC. The Independent Verifier was given greater authority on this project and could physically stop the constructor from working in the tunnel. The Eastlink project progressed over 600 days without a Lost Time Injury. Following the Eastlink Project CW-DC has been involved in two other large tunnel projects in New Zealand. 87 Mr Barry set out the current health and safety management systems of Aurecon. Its OHS&R Management System continues to be certified as complying with the requirements of AS4801:2001. Registration was reissued on 19 March 2009. The requirements of Aurecon's OHS&R Manual 2005 were set out by Mr Barry and a copy was annexed to his affidavit. Project specific OHS&R Management Plans are developed in respect of each project. A substantial review of Aurecon's health and safety performance was undertaken in May 2009. Following the review, a revised Aurecon Health and Safety Policy was approved by the Aurecon Board. 88 In August 2008, Mr Barry participated in the Federal Safety Commissioner's inaugural CEO Forum. Annexed to the affidavit was a document titled "Leading the Way" and "Companies Committed to the Leadership Charter Federal Safety Commissioner's CEO Forum 21 August 2008." Aurecon is the only consultant currently committed to the Leadership Charter. 89 Aurecon continues to implement Safe Working Guidelines that address safety issues. The company has reviewed amended OHS&R forms and checklists. It has embarked on a series of key business changes and rejuvenation activities affecting a number of areas including its safety culture. Safety Culture experts were engaged to enable Aurecon to gauge their performance improvement. Aurecon also uses a Health and Safety Contract Assessment Tool to verify the health and safety obligations in contracts and the relevant project team's role in meeting those obligations as defined in the contract to determine if they are met, exceeded, or not met. Health & Safety Project Assessment & Report is an audit checklist that is customised to suit each Project's specific needs. A Safety Management Review Checklist has been developed to require Project Principals and Project Leaders to undertake a review of their Project using the checklist. A checklist for reviewing a Safe Work Method Statement was developed to aid the Project Leader to review contractors' Safe Work Method Statements. 90 In 2006, Aurecon initiated a substantial project to enhance its approach to safety in design. A copy of a document titled "Safety in Design Guidance Notes" was annexed to the affidavit. 91 Mr Barry detailed Aurecon and CW-DC's contributions to the community. This includes community programs, education initiatives and charitable organisations across Australia and internationally. Key initiatives include "Melbourne Cares". This involves a learning strategy to connect young people from disadvantaged backgrounds with organisations in Melbourne's CBD with the aim of increasing opportunity and encouraging students to think about new options for their work and life. 92 Aurecon organises or participates in the following: i. Bridge Building Competition. This is a competition for Year 8 and 9 students to encourage them to engage with engineering activity and see the different roles that engineering can play in the community. It operates across Australia and New Zealand. ii. Property Industry Foundation. Aurecon is a founding member of the Victorian Chapter of the Property Industry Foundation which supports homeless children in Melbourne. iii. Salvation Army - Passport to work. Aurecon participates in this program which involves participating in interview panels for long term unemployed job seekers. This is a program for disadvantaged children. iv. Ecumenical Migration Centre. Aurecon supports the employment of refugees by engaging employee members through the Ecumenical Migration Centre run by the Brotherhood of St Lawrence. v. Engineers without Borders Australia. This organisation works with disadvantaged communities to improve their quality of life through education and the implementation of sustainable engineering products. Aurecon's particular area of focus is on the sponsorship of a Project in the Daintree for the local Indigenous people to help design and manage the construction of two facilities (a classroom and amenities block). Aurecon has previously provided employees with the opportunity to take leave to work overseas, for example, in Ethiopia. vi. International Community (known as "IDSS"). Aurecon is also involved in international development assistance business. This brings together communities, donors, commercial partners and non-Government organisations to build communities' self reliance. IDSS offers projects and stakeholders access to consultants across all sectors of industry, including health and HIV/AIDS, education, gender, community development, water sanitation and governance. In 2008, IDSS sponsored the Sustainable Design Technology Expo in Melbourne. The Expo was part of the Engineers Without Borders Australia Annual Conference. The event was attended by over 250 delegates and 260 school students. vii. Genesis Energy Schoolgen initiative. Aurecon employees in New Zealand have been participating in the Genesis Energy Schoolgen initiative which involves educating students about solar power and renewable energy. It provides selected schools with the ability to generate some of the its own energy. 93 Aurecon regularly donates to various charities. In 2009, it donated $25,000 to the Victorian Bushfire Appeal. Its staff also provided direct assistance to bushfire victims including the provision of clothing, transport and other necessities. In addition, its staff also raised further substantial funds to donate to the bushfire appeal. Recently, it part sponsored the production of a DVD designed to promote engineering to school children. The DVD was provided to every secondary school in Australia. 94 Since 2003, Aurecon has provided $500,000 of in-kind support to the CSIRO to enable the science community to provide a bid to host the proposed global Square Kilometre Array Telescope in Australia. 95 In 2009, an employee of Aurecon, Mr Khalil Emseis, was awarded the Delta Electricity Safety Excellence Award for his contribution in achieving Safety Excellence during the Delta Electricity Unit 3 outage. 96 Mr Barry noted that both Connell Wagner and CW-DC have no prior convictions under the Act. The defendants fully co-operated with WorkCover and the Coroner during the Coronial Inquest. The companies also settled expeditiously a claim brought by Mr Shores' family. Mr Barry expressed on behalf of the Management of Aurecon Australia, its sincere regrets that its actions, omissions and failure led to its employee's health and safety being put at risk. He said that CW-DC also sincerely regretted that its actions, omissions and failure contributed to the creation of the risk of the rock fall that caused the death of Mr Shores. Senior employees of CW-DC represented the company at Mr Shores' memorial service. 97 Mr Barry said that both defendants had, through internal and external processes, endeavoured to implement and maintain systems and work practices which aim for the minimisation of the risks to the health and safety of tunnelling employees which are inherent in the nature of the work concerned. He said the defendants are committed to the process of continual improvement within their own organisations and to the Design and Construction Industry. Evidence of Professor Brown 98 In recent years Emeritus Professor E T Brown has worked as a Senior Consultant to Golder Associates Pty Ltd ("Golder Associates"), Consulting Engineers, as a Research Consultant to the Sustainable Minerals Institute at the University of Queensland and as a company director. Until 31 May 2001, Professor Brown was employed by the University of Queensland as Senior Deputy Vice-Chancellor and has been an Emeritus Professor of the University since that time. 99 The solicitors for the defendants, in letters dated 10 June 2008 and 15 August 2008, engaged Professor Brown to provide a report in respect of a business interruption claim by BHBB, arising out of the incident on 29 July 2004 and the subsequent closure of the Cross City Tunnel. By letter dated 11 March 2009, Professor Brown was engaged to provide further assistance to the defendants in respect of prosecutions commenced by WorkCover against Connell Wagner and CW-DC. 100 Professor Brown was provided with the WorkCover brief and asked to comment upon the views expressed by Mr Kotze in his report to the Coroner and the evidence given by him during the Coronial Inquest on 16 and 17 August 2007. He was also asked to provide his comments and opinions on the views expressed by Dr Pells in his report. 101 Professor Brown provided a report dated March 2009. He provided a subsequent report dated July 2009 and provided answers to further additional questions in a letter dated 17 August 2009. After considering what Mr Kotze said in his report concerning "warning signals that the potential for rock failure existed" in the roof, Professor Brown said (at 6.14 of his March 2009 Report) "in my opinion, it represents too great a leap in logic and in the interpretation of the mechanics of the problem to say that the bed displacements observed in the side walls and haunches resulting from the redistribution of stresses following excavation, "were warning signals that the potential rock failure existed" in the roof. The failure that occurred on 29 July 2004 resulted from brittle fracture of intact rock under the influence of elevated horizontal compressive stresses in the roof, not from transverse inter-bed slip." However, at the conclusion of that part of his report dealing with "warning signals", Professor Brown said: "as discussed in paragraphs 8.3 to 8.7 below, Dr Pells' analysis shows that the mechanics of the failure and the conditions under which it occurred can be explained logically using in situ stresses that are not atypical of those generally existing in the Sydney Region without postulating artificial augmentation of the stresses in the roof." 102 In addressing the lack of roof support, Professor Brown noted Mr Kotze said: "the roof collapse occurred because there had been no roof support measures installed to cater for the prevailing geological conditions described above. The anticipated Type 2 pattern rock bolts had not been installed. The nearest Type 1 random rock bolt was at chainage 1207m. There were no rock bolts installed in the roof between chainages 1207m and 1231m, ... the roof collapse of 29 July 2004 could have been prevented through the installation of a suitably designed roof support system. A suitably designed roof support system could have been installed routinely throughout MVT-1." 103 Professor Brown's view was that he was: "... not certain that, had it been installed as close to the face as the available equipment permitted, Type 2 support would have prevented the failure from developing through the brittle fracture or slabbing mechanism ... The more important point is that, in the event of a brittle slabbing failure having occurred in the roof, Type 2 support would have been expected to have prevented the loosened slab(s) from detaching fully and falling to the floor." 104 In dealing with the geological features of the tunnel, Professor Brown accepted Mr Kotze's observations of the engineering geological conditions and features encountered in the tunnel and what he regarded as Dr Kotze's meticulous record keeping, as represented by his mapping and photography. However, Professor Brown had disagreed with some of Dr Kotze's interpretations of the engineering significance of some of the observed and recorded geological features. In respect of the issue of "warning signals", which Mr Kotze gave evidence about in the Coronial Inquest, Professor Brown said (at 7.5 of his March 2009 Report): "I agree with Mr Kotze that the existence of spalling and bedding plane defects in the roof of the tunnel provided indications of the potential for roof failures. However, I do not agree that the movements on bedding planes in the walls discussed at length on pages 1589 to 1604 of the Kotze Evidence similarly provide indications of potential for the failure in the roof." 105 In respect of Dr Pells' Reports, Professor Brown said that: "... with a few minor exceptions which generally relate to matters of emphasis, I agree with and/or accept the observations made, the arguments developed, and the conclusions reached, by Dr Pells in his series of reports. In particular, I agree with the conclusions reached from the rock mechanics analyses presented in his Report TR6." 106 In considering Dr Pells' answer to the question of whether there were "any indications in the tunnel up to the location of the failure that were pointers to the collapse", Professor Brown said: "In his opinion, as in mine, this spalling was a clear indication of the existence of relatively high stresses in the tunnel crown. He also discusses this point on pages 14 - 16 of his Report TR4 where he says that the spalling failures "were at the least an "amber light" and may even be considered a "red light"." As noted in paragraph 6.13 above, it is important to note that the potential risk arising from such a mechanism, and possible mitigation measures, had been identified in the Design Report." 107 Professor Brown considered it significant that Dr Pells did not use the term "warning signals" used frequently by Mr Kotze, nor did he regard other features and occurrences identified in the Kotze Report (at pages 7 and 8) as being indications or warning signals of tunnel collapse. He agreed with Dr Pells' opinions in this regard. 108 In a letter dated 2 September 2009, Professor Brown expressed his opinion on the level of risk in MVT-1 East from chainage 1190 to chainage 1230. He noted that the opinions and comments were provided after the event and with some knowledge of the circumstances surrounding the events that actually occurred. He said that they are not opinions that could necessarily have been provided before the events of 29 July 2004. In particular, Professor Brown considered it highly unlikely that before the event, he or anyone else, would have or could have given the following opinion in respect of chainage 1225 to 1230. This was because the true nature of the interlaminated siltstone/sandstone layer, particularly the stiff, central white or grey sandstone band that was the seat of the failure and the subsequent rock fall that killed Mr Shores, did not become fully known until after being closely examined by Mr Kotze, Dr Pells and others after the event. 109 Professor Brown's opinion on the level of risk in MVT-1 East was as follows: CHAINAGE 1190 - 1196 4.2 Likelihood of rock fall occurring: Very unlikely. How severely could someone be hurt?: Minor or small-scale spalling from the immediate roof surface could result in a need for first aid. Basis of view on the likelihood of a rock fall: The rock in the roof was of very good quality. There was no interlaminated siltstone/sandstone in the roof. No bolting was installed, but no falls had occurred. However, there was potential for minor or small-scale surface spalling from the immediate roof. ... 4.4 CHAINAGE 1208-1225 Likelihood of a rock fall occurring: Likely. How severely could someone be hurt?: Should one occur (which it didn't), a significant fall could kill a person or cause permanent disability. Lower levels of injury could have been sustained from smaller potential falls including minor surface spalling. Basis of view on the likelihood of a rock fall: There was interlaminated siltstone/sandstone in the roof and no rock bolts had been installed. However, no falls occurred. 4.5 CHAINAGE 1225-1230 Likelihood of a rock fall occurring: Very likely. How severely could someone be hurt? As events demonstrated, a significant fall could kill a person or cause permanent disability. Basis of view on the likelihood of a rock fall: Interlaminated siltstone/sandstone existed in the roof and no rock bolts had been installed. Mr Shores was attempting to drill bolt holes when the fall caused his death. Evidence of Mr McQueen 110 Mr Leslie Bruce McQueen, the principal of Golder Associates who was employed as an engineering geologist also provided an expert witness statement to the defendants' solicitors. He was provided with similar material to that provided to Professor Brown. In dealing with Mr Kotze's report to the Coroner and his evidence, Mr McQueen said: 5.1 Warning signals or signs in the tunnel of the potential for rock failure are noted in Mr Kotze's report clauses 11 and 12, p7 and 8 and his Evidence p1584 to p1607. 5.2 Mr Kotze states that there were general 'warning signs' in MVT-1 from Ch. 785 to 1170 and three site specific separate 'warning signs' in MVT1 from Ch, 1170 to 1230. 5.3 For Ch. 785 to 1170, the general 'warning signs' are described as 'spalling' of rock pieces with fresh fractured surfaces at locations in the tunnel roof. I agree that spalling is an indication of a stress condition, viz, high induced stress compared with the strength of the rock. It is a stress related failure mechanism that may occur close to the advancing tunnel face or later after stress fractures have propagated sufficiently to release a piece of rock from the roof. Where it occurs in the roof it indicates a higher in situ horizontal stress compared with the vertical stress, which is expected as being a general case in the Sydney region. ... 5.7 I agree that the presence of bedding plane defects when present in the roof can lead to rock failure of slabs of rock, either due to falls under gravity or with the assistance of induced stress. 5.8 I do not accept that the irregular nature of the shale breccia and its mode of formation results in localised residual stresses that may influence or point to potential rock failure in the roof. 5.9 If conditions encountered in the tunnel were different to those assumed in the geotechnical model of the tunnel (in CW-DC Geotechnical Interpretative Report, Bypass Vent Tunnel, 8 August 2003), then the design would need to be addressed to consider any impact of these changed conditions. Mr Kotze's 'warning signs' appear to have been included as "high horizontal stress which may cause delamination in the crown", in the risk assessment of CW-DC's design geotechnical model. 5.10 Four in situ stress measurements were carried out in borehole CCT142, as recorded in Table 4.5 of the CW-DC Geotechnical Interpretative Report. The major horizontal stress was 12.7 MPa at 21m depth, 8.1 MPa at 23m, 7.2 MPa at 26, and 15.0 MPa at 32m. The middle two readings are close to the normal upper bound values of stress measured in the Sydney area. The two highest values (12.7 and 15.0 MPa) were higher than the normal upper bound values, although high values such as these have been measured elsewhere in Sydney due to the influence of topography or specific geological features (see attached figure based on the major horizontal stress v depth graph in the paper McQueen (2004) for Hawkesbury Sandstone data only). 5.11 Appendix G of the Geotchnical Interpretative Report indicates that a horizontal fracture was recorded for the two deeper stress measurements (26m and 32m depth). A valid hydraulic fracture stress measurement requires a vertical fracture in the borehole wall. The orientation of the measured stress also cannot be obtained from such a test. I would, therefore, regard these deeper two readings with a lower level of confidence. It is not an unusual event for this type of horizontal fracture to occur during a hydraulic fracturing stress measurement programme in the horizontally bedded rocks of the Sydney region. 5.12 If there was a higher in situ stress below the palaeochannel then I would have expected it to occur at shallower depths, just below rock level at the base of the palaeochannel. I accept the conclusion in Appendix B of the Geotechnical Interpretative Report that the influence of topography (viz. the palaeochannel) on these test results is not clear. Nevertheless, the shallowest reading (21m depth) is consistent with my expectation and likely to be of local influence only. The next reading (23m depth) appears to be consistent with the Sydney stress field for the depth and as measured elsewhere on the project. I consider that this would be a reasonable value for use in the tunnel design. 5.13 I consider that an interpretation of the CCT142 stress measurements as presented here in Clauses 5.10 to 5.12 would have been a more usual approach, rather than Mr Kotze's comments in his Evidence page 1580. In addition, as indicated by Dr Pells analysis, a stress magnitude of 8 MPa (normal upper bound level for Sydney) is enough to explain the stress failure at Ch 1230. 111 In respect of Dr Pells' Report, Mr McQueen stated: 6.1 I am in general agreement with Dr Pells' conclusions (Report PSM, TR6) on how the failure occurred at Ch 1230. I consider the rock failed as the result of the induced stress exceeding the unconfined compressive strength of the rock. Initial spalling of the rock beam (rock between the tunnel roof and overlying horizontal bedding plane) likely reduced the beam thickness, led to additional concentration of stress then further spalling with failure assisted by bending in the beam. In my opinion the deviatoric stress approach used by Dr Pells explains the failure, viz. brittle failure of rock by tensile splitting in a compressive stress field (McQueen, 2004). 6.2 I am also in agreement with Dr Pells analysis of the influence, or lack of influence, of other geotechnical parameters and geological features, such as the stiffness of the rock, strength of bedding planes, the palaeochannel and the shale breccia. 112 Mr McQueen then went on to comment on what he described as the Q system concluding at 6.11 of his report as follows: 6.11 I consider that it would not be unusual for CW-DC geologists who are mapping short sections at a time in an advancing tunnel to adopt a consistent SRF value for their Q calculation (in this case an SRF of 1). The influence of stress on the tunnelling and support requirements would then be considered as a separate exercise. This would be done for the specific purpose of giving the designer a reasonable indication of the variation in the quality of the rock mass being encountered, i.e. the Q value would reflect the changes in the number of joint sets, spacing and quality of the joints and the groundwater inflow (other factors in the Q calculation). Q derived in this manner would not be used for assessing support requirements. The separate stress assessment would then take into account observations of tunnel deformation, the strength of the rock (qualitative mapping observations and previous laboratory testing), anticipated in situ stress along with anticipated rock mechanics failure mechanisms. Principles 113 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: [I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Consideration 114 The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offences. This involves examining the nature and quality of the offences, as set out in the agreed statement of facts and the evidence. As already observed in the statement of agreed facts, Connell Wagner and CW-DC entered into a labour hire agreement by which Connell Wagner agreed to provide CW-DC with staff and support facilities to enable CW-DC to perform design consultancy services, as requested by CW-DC. The staff provided to CW-DC remained employed by Connell Wagner. CW-DC entered into a Consultancy Agreement with BHBB for the performance of design consultancy services. Connell Wagner entered into a collateral deed in which it agreed to ensure that, at no additional cost to BHBB, it would provide CW-DC with sufficient resources, including but not limited to professional staff for CW-DC to perform its obligations under the consultancy agreement for the duration of the project. CW-DC issued a Final Design Report and drawings for MVT-1 in November 2003 under the D&C Contract. 115 BHBB determined the methods of construction to be utilised in MVT-1. It determined that MVT-1 was to be excavated using a Mitsui S300 Roadheader. The Roadheader crews did not include any Connell Wagner employees at any stage of the project. During the 8.00 am to 9.45 am break between shifts, Connell Wagner Geologists entered MVT-1 for the purpose of geological mapping and taking photographs. The Final Design Report for MVT-1 identified three alternate types of roof support using rock bolts and shotcrete being Type 1 Support (random bolting), Type 2 Support (pattern bolting) and Type 3 Support (more intense pattern bolting). 116 On 18 November 2003, BHBB issued the Final Design Report to all parties which included the IFC drawings for MVT-1. The roof support installed at any tunnel location on the Project was dependent on the IFC documentation and the ongoing assessment of the "as found" geological conditions. The design of MVT-1 was to be carried out based on this documentation and assessment. The IFC tunnel specification included that "the excavations shall at all times and as speedily as possible be properly supported as shown on the Design Drawings, or as otherwise required, where emergent ground conditions dictate a departure from the Design Drawings, ... all changes to Design Documentation shall require certification by the Designer". This permitted CW-DC to vary the anticipated support types expressed on the design drawings in light of the ground conditions as actually encountered and the excavation methods actually employed. The anticipated support type from chainage 1100 to 1240 was Type 2 Support. BHBB was required to install the roof support in accordance with the IFC design drawings, unless CW-DC advised BHBB to the contrary, based upon an assessment of the "as found" conditions. 117 During the construction of MVT-1, CW-DC was responsible, on a daily basis, for mapping the geological features of the face and side walls of the tunnel, assessing the geological conditions encountered and recording that assessment. This information was provided to BHBB in written form and recorded on the Project centre. This function was at the instruction of BHBB and carried out between shifts when the tunnelling crews were performing no other work. On or about 5 April 2004, CW-DC issued a revised CSS Work Plan. The CSS Work Plan detailed CW-DC's responsibilities which included: i. Inspection of the site geology for driven tunnels to verify that the site geology is consistent with the design assumptions including all necessary mapping. ii. Clarification and/or interpretation of the design and issued for construction documentation. iii. Modification of the design and/or documentation resulting from unexpected site conditions. 118 The CSS Manager was primarily responsible for the overall management of the CSS team, with CW-DC site engineers being responsible for surveillance, report and design, together with providing support to the CSS Manager for the delivery of construction stage services for civil and structural work. CW-DC geologists and geotechnical engineers were responsible for recording and assessing the "as found" conditions, recording and making interpretation with regards to the assumed ground condition used for the design of the structures and providing forward intelligence to allow the contractor to plan works. The CSS Work Plan provided that CW-DC's Senior Engineering Geologist's particular duties and responsibilities included "Review and assess ground support on a daily basis, confirming the support is in accordance with the design documentation." 119 CW-DC was required to provide advice on actions to be taken by BHBB with regard to non-conformances occurring during the performance of BHBB's construction works. CW-DC was required to provide BHBB with a request for remedial action where CW-DC believed a potential non-conformance existed. CW-DC provided during the charge period daily face maps on 22, 23, 26, 27, 28 and 29 July 2004. A 15m map identified, amongst other things, that the support being installed was a "random temp bolts" and that the design support limitation was "2/E". 120 At approximately 8.30 am on the morning of 29 July 2004, Mr Ayshford, a CW-DC geologist, visited the site and inspected the base of MVT-1 East. Mr Ayshford conducted an inspection photographing the geology and undertook mapping. Following his visit, no advice was given to BHBB with respect to any roof support to be installed at or about the face of MVT-1 East. On 29 July 2004, CW-DC's IFC drawing identified the "anticipated support type" from chainage 1190 as Type 2 Support. At no time did CW-DC give any advice or make any recommendation either in writing or verbally that it was inappropriate to continue installing Type 1 Support or that Type 1 Support was inadequate for the "as found" geological conditions or that Type 2 Support should be installed past chainage 1190. It did not provide BHBB with a request for remedial action consistent with the CSS Work Plan in relation to the excavation in MVT-1 East after chainage 1190, nor was it suggested by CW-DC that the installation of Type 1 Support was a non-conformance or a non-compliance with the design intent. 121 Daily mapping sheets were prepared by CW-DC for the face of the tunnel. These detailed the quality of the rock and identified the support being installed. The daily mapping sheets noted that the support type being installed in MVT-1 East past chainage 1100 was Type 1 Support, or none. CW-DC did not advise BHBB that there was a need for an increase in support from that installing Support Type 1 to Support Type 2 and that it was failing to meet the requirements in the IFC design report and that there was an increased risk of rock fall. 122 BHBB did not query the difference between the anticipated support indicated on the IFC drawings and the rock support observed and recorded on the daily mapping sheets. Both BHBB and CW-DC knew that the IFC drawings indicated Support Type 2 bolting past chainage 1190 and both knew that Type 1 Support was being installed past chainage 1190. 123 On 28 July 2004, Mr Rheinberger, a geologist employed on behalf of CW-DC carried out an inspection of the face of MVT-1, which was then approximately 1219. He assessed that Type 1 Support was appropriate for the observed geological conditions. He did not communicate this assessment to the CSS Manager at any time prior to the incident on the morning of 29 July 2004 (the day of the rock fall at chainage 1230). Each Site Visit Report ("SVR") issued by CW-DC for MVT-1 bore the name of the CSS Manager, Mr Bleuler, who was responsible for its issue. BHBB understood that Mr Bleuler was checking the observations and recommendations made by the CW-DC Geologists and Geotechnical Engineers in order to confirm compliance with the design intent as required by the CSS Work Plan. Mr Bleuler did not check each SVR that was issued to BHBB during July 2004. At no time prior to the incident was it suggested to BHBB that Mr Bleuler was not checking the SVR, being one of the responsibilities assigned to him in the CSS Work Plan. 124 The essence of the offence to which Connell Wagner has pleaded guilty is that it allowed its employees to be put at risk of a rock fall between chainage 1190 and chainage 1231 over a period of seven days. It did so because it did not ensure that there was adequate bolting inserted in the roof of the tunnel by BHBB between chainage 1190 and chainage 1231. 125 The essence of the charge to which CW-DC has pleaded guilty is that the tunnel, being the premises, between chainage 1190 and 1231 were unsafe premises because inadequate support bolts were inserted into the roof of the tunnel. Type 1 Support bolting was inserted over the relevant chainage instead of Type 2 pattern bolting as required by the design. 126 CW-DC had the responsibility to advise BHBB, the constructor, that there should have been Type 2 pattern bolting used from chainage 1190 to chainage 1231. In short, there was inadequate roof support. The contractual obligations of CW-DC included daily mapping and inspection of the tunnel as it progressed and reporting on the tunnel's progress. Such reports went to the CSS Manager, Mr Bleuler, to enable a daily assessment of the ground support and to ensure that such support was in accordance with the design documentation. Arising from an assessment of these Reports was an obligation to provide the constructors with requests for remedial action where that was required. 127 CW-DC recognised the importance of the daily examination of the "as found" conditions and a comparison between the "as found" conditions and the requirements of the construction drawings. They recognised an obligation which they adopted to ensure that the two were compatible. Each defendant either recognised, or ought to have recognised, that there was a risk of rock fall if they did not compare the "as found" conditions with the roof support that was installed between chainage 1190 and chainage 1231. It is this failure that created the risk of a rock fall or tunnel collapse. There were objective signs of high horizontal stress in the tunnel before the tunnel collapse after chainage 1190 prior to the rock fall, which ought to have been observed and acted upon by the defendants. There were also other objective indicators of the risk of rock fall, which are delineated in the expert's reports of Dr Pells and Mr Kotze set out earlier. 128 Professor Brown stated that "Type 2 Support would have been expected to have prevented the loosened slab(s) from detaching fully and falling to the floor." It follows that the failure of CW-DC to ensure Type 2 Support was installed and not informing the constructors of the inadequacy of the roof support, not only in a causal way created the risk of a rock fall, but also resulted in the rock fall. The absence of Type 2 Support meant that the rock fall and the slab which detached and weighed approximately 12 tonnes was going to fall on whoever was below. 129 In my view, the objective seriousness of these offences was that the consequences were always going to be serious. Although BHBB were in control of the way in which the tunnel was being constructed and they failed to provide overhead protection for tunnellers whose responsibility it was to install the bolts from the arm of the tunnelling machine, the risk of a roof collapse had the potential to affect anyone who was in the tunnel between chainage 1190 and 1231 at any time, whether they were employed by CW-DC, Connell Wagner, or anyone else, because the premises were unsafe. The serious consequences of the roof collapsing is a clear manifestation of the degree of seriousness of the offence. 130 Mr Scott submitted, in respect of CW-DC, that the Court should find the objective seriousness of the offence to be at the lower end of the "serious" category for the following reasons: 1 CW-DC's control of the chainage of MVT-1 East which is the subject of the charge was limited to that of providing advice to the constructor, BHBB. 2 BHBB had control over the CCT Project and the administration of the system of work. BHBB controlled the plant available to the tunnelling crew and, thereby, the method of installing rock bolting. They retained at all times the capacity to interrogate the designers about the roof support installed. BHBB in this sense, maintained control over the capacity to interact with the designers to ensure that adequate roof support was provided in the excavation. 3 BHBB knew that it was operating under a lower roof support in the particularised area than identified in the design drawings and had not sought the advice of CW-DC with regard to the decision to depart from the design drawings and had not sought the advice of CW-DC with regard to the decision to depart from the design drawings. 4 No work was performed in MVT-1 East on Saturday 24 and Sunday 25 July 2004. 5 On 29 July 2004, at approximately 10.00 am, a safety walk was undertaken by various BHBB personnel, including Manfred Lechner, Construction Manager for Tunnels and Trevor Love, Safety Consultant. Following this safety walk, no issues of concern were identified and hence work commenced for the day. 6 The risk generated by the failure of BHBB to install Type 2 pattern bolting between chainages 1190 and 1230 is not consistent as to its degree across those chainages. 7 BHBB installed on a random basis 17 bolts between chainage 1195 and chainage 1208 in MVT-1 East (referred to in Mr Kotze's report and the agreed statement of facts). 8 Emeritus Professor Edwin Brown, in a letter dated 2 September 2009 described the likelihood of rock fall as follows: (a) chainage 1190 - 1196 - very unlikely; (b) chainage 1196 - 1208 - very unlikely; (c) chainage 1208 - 1225 - likely; and (d) chainage 1225 - 1230 - very likely. 9 MVT-1 East had installed for its entire length large ventilation tubes positioned in the roof in close proximity to the northern wall of the tunnel. These ventilation tubes were held in place by bolts driven into the roof. Those bolts were of varying length up to and including 1.5m. These bolts created some additional support to the roof. 10 Mr Barry's affidavit and the documentary material exhibited to that affidavit, demonstrates that CW-DC takes its responsibilities for the occupational health and safety very seriously. This is a factor that mitigates the objective seriousness of the offence: see Warman International Limited v Workcover Authority of New South Wales (1998) 80 IR 326; WorkCover Authority of New South Wales (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8; WorkCover Authority of New South Wales (Inspector Larkin) v Rice Growers Co-operative Limited (2002) 120 IR 123 and WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383. 11 CW-DC provided, during the charge period, daily face maps on 22, 23, 26, 27, 28 and 29 July 2004 and a 15m map, covering chainage 1185 to 1200 on 23 July 2004. This 15m map identified, amongst other things that the support being installed was "random temp bolts" and that the design support limitation was "2/E". 12 Prior to the evidence of Mr Albrecht Mueller being given at the Coronial Inquest, CW-DC was unaware of BHBB's disregard of CW-DC's mapping of MVT-1 East and the notations within that mapping. Mr Mueller gave the following evidence: Q 62 Prior to the incident did you receive the 15m wall maps produced by CW-DC? A 62 Yes, mainly for filing purposes and to have them readily available if they were required for any issues raised by CW-DC. During construction, the mappings are more important to Connell Wagner to assess the ground conditions and compare them with the design assumptions to verify the support requirements or change them. For us, it is more a documentation to verify support changes. ... Q 64 How often does BHBB CCT JV receive the 15m maps? Q 64 After the excavation of 15m, the 15m maps? Q 64 After the excavation of 15m, the 15m maps are produced and after that, they are issued to BHBB. ... 131 In respect of Connell Wagner, Mr Scott made an identical submission for the following reasons: 1 No work was performed in the MVT-1 East on Saturday 24 and Sunday 25 July 2004. 2 During the charge period, there is evidence of Mr Rheinberger attending MVT-1 East on one occasion only, this being 28 July 2004 at chainage 1219. 3 Mr Peter Hartcliff had not attended MVT-1 East since 10 July 2004. 4 Mr Shaun Ayshford had attended MVT-1 East on 22, 23, 26, 27, 28 and 29 July 2004 for a period of approximately thirty minutes on each of those days. 5 The last occasion that any of Connell Wagner's employees attended MVT-1 East was on 29 July 2004 at approximately chainage 1225.7. This visit was by Mr Ayshford at approximately 8.30 am. This visit preceded work being commenced by the BHBB Roadheader crew. Shortly after the attendance by Mr Ayshford, a safety walk was undertaken by various BHBB personnel, including Manfred Lechner (Construction Manager Tunnels) and Trevor Love, Safety Consultant. Following this safety walk, no issues of concern were identified and hence work commenced for the day. 6 The risk generated by the failure of BHBB to install Type 2 pattern bolting between chainage 1190 and 1230 is not consistent as to its degree across those chainages. 7 BHBB installed on a random basis 17 bolts between chainage 1195 and 1208 in MVT-1 East (referred to in Mr Kotze's report and the agreed statement of facts). 8 Emeritus Professor Edwin Brown, in a letter dated 2 September 2009 described the likelihood of rock fall as follows: (a) chainage 1190 - 1196 - very unlikely; (b) chainage 1196 - 1208 - very unlikely; (c) chainage 1208 - 1225 - likely; and (d) chainage 1225 - 1230 - very likely. 9 MVT-1 East had installed for its entire length large ventilation tubes positioned in the roof in close proximity to the northern wall of the tunnel. These ventilation tubes were held in place by bolts driven into the roof. Those bolts were of varying length up to and including 1.5m. These bolts created some additional support to the roof. 10 The three employees, the subject of the charge, were instructed to enter the tunnel of MVT-1 East via a path which took them underneath the ventilation tubes to the face of the tunnel. 11 Mr Barry's affidavit and the documentary material exhibited to that affidavit, demonstrates that Connell Wagner takes its responsibilities for occupational health and safety very seriously. This is a factor that mitigates the objective seriousness of the offence: see Warman International Limited v Workcover Authority of New South Wales (1998) 80 IR 326; WorkCover Authority of New South Wales (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8; WorkCover Authority of New South Wales (Inspector Larkin) v Rice Growers Co-operative Limited (2002) 120 IR 123 and WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383. I have been mindful of these contentions in determining penalty for each of the defendants, although it will be apparent from these reasons that I do not agree with all put by Mr Scott . 132 The principles of foreseeability is a factor in determining the objective seriousness of the offences: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29. 133 Both CW-DC and Connell Wagner acknowledged that it was foreseeable that where no adequate rock support was installed in the roof of MVT-1 between chainage 1190 and 1230, a risk of injury from rock fall would arise. The evidence of Professor Brown and Dr Pells (stresses existing in the roof, spalling and bedding plane defects) provided indications for the potential of a roof collapse. Dr Pells' evidence was that the spalling failures were at least an "amber light" and may even be considered a "red light". 134 It is important to recall that the potential risk arising from mechanisms in the roof and possible mitigation measures had been identified in the Design Report. 135 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death, is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 at 81; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27]. It was foreseeable that if rock bolts were not installed in accordance with the Design Report between chainage 1100 and 1230, it was, as Professor Brown observed, very likely a rock fall would occur. 136 The existence of simple and straightforward remedial steps that could have been taken by the defendants to avoid the incident are relevant in assessing the seriousness of the offences: see Kembla Coal and Coke (at [27]). 137 In respect of Connell Wagner, the remedial measures were simple and straightforward. Connell Wagner was in a position to ensure that CW-DC complied with what it had required to be undertaken in the Design Drawings. This required a proper assessment of the "as found" conditions, as against the construction drawings and the information that was being passed to and assessed by Mr Bleuler 138 In respect of CW-DC, it was in a position to direct and control the geologists and Mr Rheinberger and ensure that appropriate assessments were being made, by visual observation, to confirm that the requirements in the design drawings were being implemented between chainage 1190 and the site of the rock fall. In particular, that Type 2 rock support was being installed. 139 Mr Bleuler's evidence was that he was not forwarded copies of the daily mapping sheets or the 15m mapping sheet and he only saw them when he was required to make an inspection over some particular issue. Relevantly, Mr Bleuler gave the following evidence in cross-examination at the coronial inquest. Q. If you need to see it, please ask, but under the specific authorities to be exercised by the senior engineering geologist during the construction phase of the project, we find this: "Review and assess ground support installed on a daily basis, confirming the support is in accordance with the design documentation"? A. Yep. Q. Those words "confirming the support is in accordance with the design documentation" would seem to imply an obligation in this case on Mr Rheinberger to positively confirm it in the sense of ticking it off that the support was in accordance with the design documentation, would you agree with that? A. Yes. Q. Yet when we look at the site visit reports or the reports of the CSS meetings, indeed any documentation, we don't find any record confirming that the support is in accordance with the design documentation. Ought there not to have been some record making that point, that is, positively making a confirmation on a daily basis that the support was in accordance with the design documentation? A. In hindsight I have to say yes, I should have put in a column or a heading that it was - this work was undertaken by recording where a support pattern was incomplete. So it was - in a sense, it was done, but, as I said, in hindsight, if I would have to design again these site visit report sheets, it would certainly contain another column. 140 Clearly, remedial action was always available. It was a simple matter of drawing the non-compliance with the Design Drawings to the attention of Mr Bleuler or drawing it to the attention of the constructors and CW-DC and/or Connell Wagner could have withdrawn their employees from the site upon being warned of the risk. 141 Although damage or injury to employees does not, of itself, dictate the seriousness of the offences or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. 142 In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. In the present case, Mr Shores, an employee of BHBB, was fatally injured as a result of the rock fall. 143 The seriousness of the risk, its foreseeability, and the ease of removing that risk, renders these offences, as submitted by the prosecutor, to be at the high end of objective seriousness. 144 In respect of the issue of contribution to the risk, Mr Agius adopted, by way of submission, what was said by Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92. His Honour's judgment dealt with prosecutions brought pursuant to s 8(1) and s 8(2) of the Act against BHBB and Cross City Tunnel Pty Ltd in which the defendants entered pleas of guilty. His Honour observed: [241] There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety ( McDonald's ) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); Workcover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; Workcover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312; Workcover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and Workcover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316. [242] The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald's at 437. Such an analysis may assist in understanding the reasonableness of the defendants' actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution. However, in sentencing, a factor, such as a lack of control by a defendant employer engaged on a multi-employer worksite, will normally not result in a significant diminution in the objective seriousness of an offence: Morrison v Waratah at [46]. It will be plain from the foregoing discussion that it would be wrong, in law and principle, to approach such considerations as if some apportioning of the overall penalty between the defendant and the other entity was being undertaken by the Court (see Morrison v Waratah at [46] and Morrison v Powercoal (2005) at [123] and [124]). 145 It is common ground that BHBB were responsible for the construction of the tunnel and the constructor was responsible for the provision of overhead protection for employees. However, the responsibility for comparing the "as found" conditions with the requirements of the construction drawings was not one shared with the constructor. It was the responsibility of CW-DC alone. The responsibility of drawing to the constructor's attention that there was a risk in not conforming with the requirements of the construction drawings, in this case, was the responsibility of CW-DC. In failing in that responsibility, the defendants rendered the premises unsafe. In respect of Connell Wagner, Mr Agius submitted that, whilst its employees were working for CW-DC, there was an element of unreality about that because CW-DC was, in fact, created by Connell Wagner as the vehicle for the provision of design services. 146 Senior counsel submitted that there is an artificiality of speaking of the responsibility of CW-DC to its own employees and Connell Wagner having responsibility for its employees where those employees were the same people. I agree with this submission. Connell Wagner could easily have undertaken the task of ensuring that CW-DC was actually providing the services that they had been contracted to provide. That was a duty that Connell Wagner did not share with the constructor. It was Connell Wagner's duty and responsibility as the ultimate employer of the personnel who were working for CW-DC. 147 In addition to the factors relating to the offences, the Court is required in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendants from re-offending. In Capral at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. I consider it is appropriate to draw attention to the need for employers operating in the construction and tunnel building industry to ensure that all design documentation is scrupulously complied with and that the "as found" conditions in the construction of a tunnel are assessed on a daily basis by experienced and skilled geologists and engineers. 148 It is therefore appropriate that I give weight to the need for general deterrence in determining penalty. 149 In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as is the propensity for the defendants to re-offend. I accept that this is not a case which calls for the imposition of some additional punishment aimed at deterring the defendants from further offending against the Act and/or for the purposes of compelling the defendants' attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. The defendants have an impressive and perhaps unique safety record, noting particularly that they operate in a dangerous industry and in the case of Connell Wagner, have been operating in this industry for over almost 30 years. 150 Each defendant has taken appropriate measures to avoid a recurrence of the offences. 151 The evidence of Mr Barry adequately demonstrates that the defendants have a very strong commitment to health and safety in the workplace and its policies and practices reflect this fact. I include an element in the penalty for specific deterrence. 152 There are a number of relevant subjective considerations. First, Mr Scott relied on s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 ("the CSP Act") and submitted that the mitigating factors identified in the above section are relevant to the defendants. These are: (i) the offence was not part of a planned or organised criminal activity; (ii) the offender does not have any record (or any significant record) of previous convictions; (iii) the offender was a person of good character; (iv) the remorse shown by the offender for the offence; (v) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (vi) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both); (vii) a plea of guilty by the offender (as provided by s 22); (viii) assistance by the offender to law enforcement authorities (as provided by s 23 of the CSP Act). 153 Secondly, Mr Scott submitted, that s 22 of the CSP Act was applicable. Counsel observed that each defendant entered a plea of guilty to an amended charge on 10 August 2009, which obviated the need for a complex trial that would have, most probably, taken several weeks of court time. In this respect, the High Court in Cameron v The Queen (2002) 209 CLR 339, Gaudron, Gummow, and Callinan JJ stated: [23] Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance. [24] More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance. 154 Kirby J further stated at [75]: ... The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly. And at [77]: ... It is unreasonable to penalise an accused person for failing to plead guilty earlier to an incorrectly particularised charge. 155 In Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 at [47], Boland J held that where the amendments led to a material change in the nature of the charge, as was the case here, a plea entered after those amendments should attract the maximum 25 per cent discount for the utilitarian value of the plea. 156 Mr Agius did not demur from this approach. Applying the above principles and noting that the amendment to the charges were significant, both as to time and chainage, the defendants are entitled to a discount of 25 per cent for the utilitarian value of the pleas: see also R v Gorman (2002) 137 ACrimR 326; and the principles discussed in Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252. 157 I take into account that the defendants co-operated with WorkCover in its investigation of the incident, and the significant steps taken by the defendants since 29 July 2004 to prevent a similar incident from recurring not just in the defendants' operations, but also in the tunnel construction industry at large. 158 I also take into account the assistance provided to Mrs Shores: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 at [17]. 159 I also take into account the conduct of each defendant following the incident and the express statement of contrition and remorse by Mr Barry which, in my view, demonstrates that each defendant has accepted its failures and omissions contributed to the risk of the rock fall which fatally injured Mr Shores. The defendants have demonstrated their contrition through the following: (i) changes in industry practice initiated by Connell Wagner; (ii) changes in its own practices and documentation; (iii) continuing review of its occupational health and safety systems; (iv) provision of counselling and support for its employees after 29 July 2004; and (v) attendance at Mr Shores' funeral. 160 I also find that each defendant is entitled to a finding that it is a good corporate citizen. In this regard, Mr Agius submitted that if the evidence discloses that the defendants' conduct "was less than pure", this is a matter that is able to be taken into account in looking generally at the state of their corporate citizenship. Senior counsel submitted that if there had been no installation of Type 2 bolting for 80m before chainage 1190, which occurred over a number of days, that is a matter that can be taken into account in the balance of determining what was the attention to occupational health and safety that was normally applied by each defendant. Counsel submitted this could be taken into account, not with a view to increasing penalty, but with a view to putting into proper perspective the fact that neither defendant took any steps to ensure Type 2 bolting prior to chainage 1190. In this regard, Mr Agius relied upon the decision of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. I have already considered the defendants' previous history in dealing with specific deterrence. I do not, in the circumstances of this case, find that there is a need to impose some additional punishment aimed at deterring the defendants from committing similar offences. 161 In imposing penalties on the defendants in relation to these offences, I am required to endeavour to ensure parity between co-offenders. In Postiglione v The Queen (1997) 189 CLR 295, Mason and Gaudron J stated: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. ... 162 In my view, the culpability of each defendant was about equal. 163 The maximum penalty is $550,000 for each defendant as they do not have a prior conviction under the Act. Having regard to all the relevant circumstances set out in these reasons, I consider the appropriate penalties in respect of Connell Wagner is $140,000 and in respect of CW-DC $140,000. 164 The prosecutor sought a moiety and costs, which I propose to grant. ORDERS 165 The Court makes the following orders: In matter No IRC 2576 of 2006: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $140,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. In matter No IRC 2579 of 2006: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $140,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ------------------------------------ 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.