Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hamilton v Parsons Brinckerhoff Australia Pty Limited [ACN 078 004 798] [2012] NSWIRComm 28 Hearing dates: 16/11/2011 Decision date: 13 April 2012 Before: Backman J Decision: (1) Parsons Brinckerhoff Australia Pty Limited (the defendant) is convicted of the offence and fined $105,000 with a moiety to the prosecutor. (2) The defendant is to pay the reasonable costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 (the Act) - plea of guilty entered to an offence under s 8(1) of the Act - defendant was engaged as the design consultant to design the Lane Cove Tunnel and associated works - the tunnel collapsed in an area referred to as the intersection of two tunnels (MC5B and MCAA) while workers were carrying out excavation works - no worker was physically injured during the collapse - the risks of tunnel collapse and falling rock were obvious, very serious and reasonably foreseeable - the defendant was on notice of the risks because of access to documentation which revealed deteriorating geological conditions in the area - consequences to workers working in the area were serious - simple and obvious measures were available to avert or avoid the risks - deterrence - maximum penalty - mitigating factors - no assessment of defendant's culpability by reference to other entities prosecuted in relation to the tunnel collapse - orders Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Inspector Hamilton v Thiess Pty Ltd [ACN 010 221 486] [2012] NSWIRComm 26 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 Category: Principal judgment Parties: Inspector Nathan Hamilton (Prosecutor) Parsons Brinckerhoff Australia Pty Limited (Defendant) Representation: Mr J Agius, SC with Mr R Reitano and Mr B Docking of counsel (Prosecutor) Mr B Hodgkinson, SC with Mr D Jordan of counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Middletons (Defendant) File Number(s): IRC 1993 of 2007 Judgment 1Parsons Brinckerhoff Australia Pty Limited (PB) pleaded guilty to an amended application for order under s 8(1) of the Occupational Health and Safety Act 2000 (the Act). The charge covers a period, "from about 27 October 2005 and including 2 November 2005". The particulars of the charge provide as follows: a) There was a risk of being struck by falling rock and/or tunnel collapse; b) The defendant failed to enquire of the Thiess John Holland Joint Venture (the Lane Cove tunnel constructor) that rockbolts installed in the intersection of the MC5B and MCAA tunnels were: (i) properly tensioned; and (ii) properly grouted. c) The defendant failed to advise all of its employees including the design team members Damien Leis, Loganathan Nagendran and Doug Maconochie that the rockbolts installed in the intersection of the MC5B and MCAA tunnels were not: (i) properly tensioned; and (ii) properly grouted. d) The defendant failed to withdraw its employee, Phillip Lloyd, from the intersection of the MC5B and MCAA tunnels and failed to prohibit its employees, Damien Leis, Loganathan Nagendran and Doug Maconochie, from entering the said intersection. 2"The premises" are defined in the charge as the Pacific Highway Exit Ramp Tunnel (MCAA), including its intersection with the Marden Street Ventilation Tunnel (MC5B) of the Lane Cove Tunnel. 3The Lane Cove Tunnel (LCT) Project (the Project) and associated works were constructed to link the M2 Motorway with the Gore Hill Freeway. A document tendered by the prosecution during the sentence proceedings, entitled "Statement of Uncontested Facts" (Agreed Facts) conveniently sets out the various corporate entities involved in the Project, as well as their respective roles, responsibilities and functions. The relevant portion from that document is extracted below: [3] In December 2003, the Roads and Traffic Authority of New South Wales engaged the Lane Cove Tunnel Nominee Company Pty Ltd ("Nominee Company") and the Lane Cove Tunnel Company Pty Ltd ("LCTC"), now known as Connector Motorways Pty Ltd, to design, construct, maintain and operate the LCT and associated works (the "Project Deed"). [4] In December 2003, the Nominee Company and the LCTC contracted Thiess John Holland Joint Venture ("TJH"), an unincorporated joint venture comprising Thiess Pty Limited ("Thiess") and John Holland Pty Limited ("John Holland"), to design and construct the LCT and associated works (the "Design and Construction Deed"). [5] Under the TJH Joint Venture Agreement, the relationship established between Thiess and John Holland was limited to the design and construction of the LCT and associated works. [6] In February 2004, TJH engaged Parsons Brinckerhoff Australia Pty Ltd ("PB"), design consultants, to design the LCT and associated works (the "PB Consultancy Agreement"). [7] As at February 2004 and at all times subsequently, PB was a member of an international group of design consultants who were world renowned for safe and effective designs for tunnelling projects, including projects in New South Wales. [8] Under the PB Consultancy Agreement, PB was to provide in broad terms two services to TJH - first, to design the underground tunnels and associated works ("the design phase services") and, secondly, to provide construction phase services during construction ("the construction phase services"). [9] The construction phase services included PB providing responses to requests for information from TJH on design issues, including design changes. [10] The construction phase services included PB undertaking sufficient inspections and monitoring of the LCT and associated works during construction to ensure that the design being implemented continued to remain valid. [11] The construction phase services included PB undertaking geological mapping of excavations forming part of the LCT and associated works and assisting in the ground support selection process based on encountered ground conditions. a. The geological mapping function was subcontracted by PB to Pells Sullivan Meynink Pty Ltd ("PSM"), and carried out by PSM, at all material times until approximately July 2005. The subcontracting to PSM of this function was known and accepted by TJH; b. In or about July 2005, TJH contracted directly with PSM, for PSM to perform geological mapping of excavations forming part of the LCT and associated works and assisting in the ground support selection process based on encountered ground conditions. Thereafter, PB was not responsible for the geological mapping as it was carried out by PSM. [12] Under the PB Consultancy Agreement, PB acknowledged that TJH relied on the skill, knowledge, judgment and expertise of PB in the performance of the design phase services and the construction phase services. [13] Under the PB Consultancy Agreement, PB warranted that the design phase services would satisfy TJH's obligations under the Design and Construction Deed, the design would be fit for purpose and completed in accordance with the requirements of the Design and Construction Deed and the PB Consultancy Agreement. [14] In February 2004, PB engaged Coffey Geosciences to carry out field investigations, undertake geological mapping, complete laboratory testing of rock and soil samples, provide estimated geotechnical parameters for use in sensitivity analysis and modelling of ground movement, interpret bore hole log data and to prepare a site investigation report so that sufficient geotechnical information could be considered in the design of the LCT and associated works. [15] In October 2004, TJH engaged PSM to provide a Senior Rock Mechanics Engineer and associated services (the "PSM Rock Mechanics Engineer Consultancy Agreement"). [16] As at October 2004 and at all times subsequently, PSM was a specialist geological consultant with world renowned experience in geological conditions in the Sydney basin. [17] Under the PSM Rock Mechanics Engineer Consultancy Agreement, PSM was to provide the services of a specialist Rock Mechanics Engineer to overview the construction of the LCT and associated works with regard to the following points: Interpret data received from tunnel and surface mounted ground monitoring instrumentation. Analyse tunnel mapping by a geologist and compare that mapping to conditions described in design reports to ensure that support regimes nominated were appropriate and efficient. Liaise with the Project designers to facilitate changes to the design to tailor it to conditions experienced based on the results of instrumentation and performance of previously installed support. Liaise with construction engineers and supervisors regarding the design requirements. Manage TJH's monitoring activities (specified by others) connected with the Project. Co-ordinate geologists and engineers seconded to the monitoring team by PB, Coffey Geosciences and PSM. Ensure that adequate records of monitoring activities were kept in an agreed format for use and consultation by TJH staff and designers. Co-ordinate the TJH survey teams inputs into the monitoring activities. Manage and co-ordinate the installation of monitoring equipment whether installed by TJH or subcontractors. Provide geotechnical technicians to read all instruments installed as part of the construction of the works. [18] Under the PSM Rock Mechanics Engineer Consultancy Agreement, PSM was obliged to exercise all the skill, care and diligence of a professional consultant experienced in providing the services and was obliged to carry out all responsibility in a thorough, skilful and professional manner. [19] The RTA (amongst other parties) engaged URS Australia Pty Ltd ("URS") to be the independent verifier for the Project, including the verification of design and construction of the LCT and associated works. a. Pursuant to the contractual arrangements by which URS was appointed to be the independent verifier for the LCT project, the contractual obligations of URS included: i. independently verifying that the works complied with the requirements of the D&C Deed; ii. observing, monitoring, auditing, and testing all aspects of the quality of the works performed by TJH to ensure compliance with the requirements of the D&C Deed; and iii. verifying that each design element of the works is appropriate for construction and complies with the D&C Deed. The Incident 4Construction of the LCT and associated works commenced in July 2004, including the excavation of rock to form the initial tunnels. On Wednesday, 2 November 2005, TJH employees were carrying out excavation works at the junction of MC5B tunnel and MCAA tunnel (the intersection). The intersection was located below Longueville Road at Lane Cove. At approximately 1.40am, a large section of the tunnel roof at the intersection collapsed. Four TJH employees working there evacuated the area as the section of tunnel roof collapsed, narrowly escaping injury. No TJH employee was physically injured by the collapse. Between the period of the charge a number of PB employees, Phillip Lloyd, Damien Leis, Loganathan Nagendran and Doug Maconochie had access to the intersection and were free to enter that area at any time. Mr Lloyd entered the intersection on the morning of 27 October 2005 and again on the morning of 1 November 2005. Background to the Incident 5Events leading up to and shortly after the incident have been set out in the Agreed Facts, the relevant part of which is extracted below: [24] Over the weeks prior to the incident, the MC5B tunnel had been advancing towards the MCAA tunnel and reached the intersection point with the MCAA tunnel around 17 October 2005. Once this point was reached, the MCAA tunnel was excavated first to the east (referred to as the "up" or "upper" drive) and then to the west (referred to as the "back", "lower" or "down" drive). Work was continuing on this western excavation at the time of the collapse. [25] On the evening prior to the incident, 1 November 2005, the night tunnelling crew (crew B) commenced their shift at 1900 hours. The crew comprised four employees: John Labruyere, the leading hand, Noel Makene, the road header operator, Bryan Greenfield, the loader operator, and Mark Watson, the driver of the dump truck. The crew were all employed by TJH. [26] Once the collapse commenced, it increased rapidly when it reached an area where a dolerite dyke was situated. The crew, under instructions from the leading hand, retreated from the area, back to the entrance of the MC5B tunnel, which was then secured (taped off). [27] The acting shift boss, Craig Bennett, who was operating with another crew in tunnel MC1A East at the time of the collapse, was then notified of the incident and travelled to the scene of the collapse with the leading hand of crew B. After observing that the area was still unstable, the evacuation alarm was activated and all tunnels in the Marden Street area were evacuated. [28] Once the tunnels were evacuated and all workers accounted for, management representatives, geologists, engineers and designers were progressively contacted and requested to attend the site. Subsequently, inspections by TJH and PB representatives were carried out both underground at the scene of the collapse and on the surface at Longueville Road. At approximately 4.30am the hole was observed to be about 4 or 5m diameter on the surface and about 5 to 6m diameter immediately below the surface of Longueville Road. [29] TJH, in consultation with a representative of PSM, considered that the collapse debris strengthening before any surface activity could occur. Initially, it was proposed to place large diameter hammered rock to form a bridging layer to lessen any pressure on the pile of collapse debris. However, an electrical sub-station in the MC5B tunnel and a dust scrubber in the MC5B tunnel needed to be removed before the hammered rock could be placed up against the debris. This strategy was discarded as observation of the hole at approximately 5.30am revealed the hole had expanded in size. [30] At about 6.00am loud noises were heard to be coming from the hole and it was observed that a substantial secondary collapse had occurred under the existing Longueville Road exit ramp and a number of piles within the collapsed area of the tunnel were observed to have been undermined by the collapse. At about 6.00am, the hole was observed to be around 8-9m diameter. [31] Shortly after 6.00am, TJH, in consultation with a representative of PSM, decided to commence filling the hole with concrete to mitigate any further collapse. Concrete pumping commenced with one pump at approximately 8.00am. Two further concrete pumps arrived shortly after and also commenced pouring, the initial pour ceasing at around 3.00pm, having reached a height of 2 metres above the top of the pile. This amount of concrete had been determined as the maximum that could be placed initially without putting pressure on the retaining wall located at the surface. Longueville Road had been closed to traffic since approximately 6.45am. [32] After waiting for the first lot of concrete to cure a second pour was commenced at approximately 9.30pm on 2 November 2005 and completed at around 12.30am the following morning. The third and final concrete pour, which was to reach the level of the top of the retaining wall, was commenced at 6.30am on 3 November 2005 and completed mid-morning. Over the next couple of days, grout was pumped into identified void areas around the collapse to complete the stabilisation works. In total, approximately 2,750 cubic metres of concrete and grout was pumped into the collapsed area. 6The functions of the geologists, employed by PSM and the geotechnical engineer, Mr Lloyd, are given close attention in the Agreed Facts. The relevant parts from that document are reproduced below: [35] Over the weeks prior to the incident, the Project Geologist for the Marden Street area mapped and classified the ground conditions, including the excavations in the MC5B tunnel and the MCAA tunnel, on a daily (or near daily) basis and recorded the classifications, and the appropriate ground support, in GSD's on a daily (or near daily) basis. [36] Additionally, throughout the Project, a Geotechnical Engineer, Phil Lloyd (who's title on the LCT project was Senior Tunnel Engineer - herein after referred to the "Geotechnical Engineer"), supplied by PB and being a design representative of PB, inspected each excavation regularly, reviewed and discussed the classification of ground conditions (including the GSD's) and assessed independently from time to time the appropriateness of ground support installed or to be installed in each excavation. [37] The system of mapping of the geological conditions, classification of ground conditions and determination of appropriate ground support was set out in the Geotechnical Mapping and Ground Support Determination Work Method Statement (No. TJH-WMS-TU-CON-016). Essentially the procedure for ground mapping and support determination was that the Project Geologist would attend, inspect and map the face of tunnels under construction, and produce the GSD. The Project Geologist provided the GSD to the TJH Senior Engineer who then distributed the GSD to the superintendent and shift bosses for implementation. [38] The "design intent" of the Project, as developed by PB, had an "observational approach" (that is, to check that the "as found" (or encountered) ground conditions were the same as those of the anticipated ground conditions) as a key element of the design. The Project Geologist at the Marden Street area (and, to a lesser extent, the Geotechnical Engineer at the Marden Street area) participated in and conducted the "observational approach" by mapping the face of the excavation on a daily (or near daily) basis, by identifying the appropriate ground support on a daily (or near daily) basis and by determining the construction sequence on a daily (or near daily) basis. The "observational approach" involved the Project Geologist at the Marden Street area providing "data" to the Geotechnical Engineer which (if appropriate) led to the geological model being refined. The "observational approach" allowed for the "design intent" to be modified where the "as found" ground conditions were worse than those of the anticipated ground conditions. The "observational approach" allowed for the ground support to be increased where the ground conditions were actually worse than anticipated. Geological conditions in the area of the intersection 7The Agreed Facts reveal that the ground conditions in the area of the intersection during the period of the charge were consistent with low to very low strength rock (shale) and that the conditions were exacerbated by the presence of a number of other geological features in the area which included an igneous doleritic dyke which transected the area, as well as relatively highly fractured rock mass characterised by the presence of joints and faults and sub-horizontal bedding plane partings intersected by inclined to sub-vertical joint plane fractures. These geological features have been described in more detail in the Agreed Facts as follows: Geological Conditions at the Site Low Strength Shale [39] The bedrock at the Junction consisted of Ashfield Shale. In the area of the Junction, the bedrock in the crown of the tunnel had been documented by the Project Geologist at the Marden Street area as Ground Class LCTG7, LCTG7/G8 and LCTG8, that is, shale of low to very low strength. Previous investigations and assessments by the Project Geologist in the Marden Street area had also indicated that the strength of the shale further decreased closer to the ground surface, in turn passing up to residual soil and/or some overlying fill. This material thus comprised a low strength sequence, from the crown of the tunnel up to the surface infrastructure. The Presence of the Dyke [40] The Junction was transected in a southeast to northwest direction by an igneous (dolerite) dyke. The dyke comprised a sub-vertical through-going intrusion, generally ranging in true thickness from between 600 and 700 mm. Dyke intersections had been encountered previously in the MC5B tunnel, the main ventilation tunnel, which was being excavated in the Marden Street area, as well as in the main line tunnels and the occurrence of the dyke in or near the Junction was anticipated by the Project Geologist and addressed in the design by the designers. [41] In previous encounters the dyke was predominantly orange in colour, highly to extremely weathered and of low to very low strength. These conditions are understood to have prevailed through the Junction. The dyke comprised a persistent low strength feature, both laterally and vertically, and its side boundaries constituted low strength defect planes. Rock Mass Joints and Faults [42] Mapping documentation completed by the Project Geologist at the Marden Street area confirmed that the rock mass into which the Junction had been excavated was relatively highly fractured. The shale in this area was characterised by structures comprising bedding plane partings, joint plane defects and localised faults. [43] Bedding plane partings were sub horizontal to locally dipping defects of variable vertical spacing. They were intersected by inclined to sub vertical joint plane fractures. Mapping by the Project Geologist at the Marden Street area confirmed the presence of three (3) intersecting joint plane sets, one of which was parallel to the dyke, whilst the other two were both normal and more acutely angled to it. These sub vertical fracture sets were locally continuous upwards and spaced as closely as 200mm apart. They effectively divided the rock mass into a series of vertical columns, which can in turn be subdivided into blocks by intersecting with sub horizontal bedding planes. [44] The rock mass in the Junction was further fractured by localised inclined fault structures that were mapped by the Project Geologist at the Marden Street area. In combination with the bedding plane partings and joint plane fractures described above, the localised faults further fragmented the rock mass into variously shaped and sized blocks and wedges. 8In addition to these features, the intersection had a relatively large effective span when compared to both the MC5B and MCAA tunnels which had spans or widths of approximately 9 metres to support. Furthermore, the roof strata in the intersection, as earlier set out, comprised low strength and fractured shale, and the low strength dyke passed through the intersection as a zone of weakness, aligned closely with the line of maximum span of the intersection. Ground support installation in the area of the intersection 9Details of the ground support (or tunnel roof support) in the area of the intersection are also set out in the Agreed Facts, the relevant parts of which are extracted below: Tunnel Roof Support Installations [46] The roof support adopted at any tunnel location on the Project was dependent on the assessed "Ground Classification", which in turn related to a "Ground Support Determination". As mentioned above the assessed ground classes in the area of the Junction were LCTG7, LCTG7/G8 and LCTG8. [47] The amount of rock bolts to be installed and the thickness of the shotcrete varied depending on the GSD (based on the ground classification determined by the geologist). If the "as found" conditions varied significantly from what was expected, a "Request For Information" ("RFI") form was commissioned by TJH and was referred back to the tunnel designers who would consider the new information and, if required, issue a revised set of drawings. Any design revisions would be submitted to the independent verifier for approval. TJH did not commission any RFI in relation to the intersection. [48] As the excavation in the Marden Street area advanced and poor ground conditions associated with low strength fractured shale and dyke intersections were encountered, the LCTG7 ground support system was upgraded by the designers to 4m long rock bolts on 1000mm x 1250mm spacings with two (2) cyclic 100mm applications of shotcrete ("Mar VII Support Type"). [49] On 29 September 2005, Leis, a lead designer for the Marden Street area, on behalf of PB issued an uncontrolled version of drawing PB-DG-TU-TW03-0059-1-0 ("Drawing 59 Revision 1") concerning a modified ground support system for the MC5B tunnel at the Junction, to TJH for client review. Drawing 59 Revision 1 was stated to cater for the projected dyke in the Junction and for the span at the Junction. [50] Drawing 59 Revision 1 recorded the width of the excavation of MC5B as 9.46m (9460mm). Leis prepared Drawing 59 Revision 1 and appreciated the width of the excavation. [51] On 25 October 2005, LCTC provided a certificate to the RTA that Drawing 59 Revision 1 complied with the requirements for the Project and was documented to enable construction and compliance with the Project Deed. On the same day, URS, as independent verifiers, certified that Drawing 59 Revision 1 complied with the requirements of the Project and was documented to enable construction and compliance with the Project Deed. [52] In the area of the Junction, and as reflected in Drawing 59 Revision 1, a modified Mar VII Support Type was specified by PB involving 4 metre long rock bolts and supplementary 5m long rock bolts in the centre of the Junction, including the western and eastern transitions. Shotcrete was to be applied floor to floor in two layers of 100mm, with the first layer prior to bolting and the second layer after the bolts had been installed. Rock bolting 10The construction sequence utilised by TJH in the area of the intersection involved the use of CT rock bolts. According to the Agreed Facts, TJH crew members experienced significant difficulties with the tensioning and grouting of these rock bolts, although it would appear that PB representatives, at least, were not informed of these difficulties prior to the incident. 11The Agreed Facts sets out in detail the system of using rock bolts including their importance as a crucial element in the ground support system in use at the intersection as well as the difficulties associated with their installation: Rock Bolting [53] The most common bolts used on the Lane Cove Tunnel project were CT rock bolts, which are referred to in the design as a PB300 rock bolt of various lengths. These rock bolts have mechanical anchorage for initial support and a plastic sheath, which provides for durability. The bolts are fully grouted for permanent support. These bolts have a design life of 100 years. The bolts were supplied by Industrial Roll Formers Pty Ltd t/as Strata Control Systems, a rock bolt manufacturer. [54] The system initially used to install the rock bolts in MC5B and MCAA, was a Boltec Rig which would drill the hole, install the bolt, pretension the bolt, and then grout the bolt. The hole being drilled for the installation of rock bolts in MC5B and MCAA, was drilled by TJH with a 41mm diameter drill bit. [55] Due to a large rock falling off the face when the Boltec was being used, it sustained damage and had to be taken out of service on 21 October 2005. A new method of installation, devised by TJH, of rock bolts using a Jumbo was put in place. A Boltec and a Jumbo are both different kinds of equipment used to install rock bolts. The Jumbo does not have an automatic grouter. The bolting process using the Jumbo took a little longer due the process of having to lower the boom and manually load the bolts to the dolly set up. 5 metres bolts were drilled as per 4 metres but had to be manually/physically installed by hand from the basket of the bolting machine after all the bolts were installed and tensioned a crew member would go out in the basket and grout the bolts. [56] Evidence establishes that prior to the incident in MC5B and MCAA, TJH crew members were having significant difficulties with tensioning and grouting of the CT rock bolts. Rock bolts recovered following the incident reveal problems with anchorage. Due to issues with tensioning of bolts TJH determined the drill bit size be reduced to 41mm. The procedure was for any failed rock bolt to be replaced with another rock bolt placed directly beside the failed bolt. It was reported to TJH that on occasion the replacement rock bolts also failed to tension. The Geologist, Daryl Gilchrist, the Geotechnical Engineer, Phil Lloyd, and PB designers, Damien Leis and Loganathan Nagendran, stated that prior to the incident, they were unaware of apparent difficulties with the installation of CT rock bolts. There appears to be no documented evidence that the geologist or PB representatives were informed of the tensioning or grouting issues of CT rock bolts prior to the incident. Neither Daryl Gilchrist (who was retained by PSM), nor Phillip Lloyd, Damien Leis, Loganathan Nagendran or anyone else from PB made any enquiries about whether the rock bolts were properly tensioned or properly grouted. [57] There are varying opinions as to whether a CT rock bolt that fails installation should have been reported to the TJH engineers and PB designers through the non-compliance/conformance procedure ("NCR system"). TJH Project Manager, Duncan Shires and Construction Manager Tunnels, Steve Willie, are of the view that a CT rock bolt that fails installation does not need to be reported through the NCR system by TJH. However the TJH Quality Coordinator and PB Designers are of the view that failed rock bolt installations should be reported through the NCR system. There was no other system which operated to ensure that the PB designers became aware of rock bolts that were not properly tensioned or properly grouted. [58] Rock bolts form a crucial element of the ground support system at the intersection, the designers were the experts that were most capable of determining the outcome that a number of rock bolt installation failures may have had on the ground support system. As such, this information should have been relayed by TJH to the designers as a matter of the highest importance. Communication 12The Agreed Facts record that TJH did not inform PB that rock bolts installed in the intersection were not properly tensioned and grouted. Nor did PB (consistent with PB's admission of guilt with regard to particular (b)) enquire of TJH whether rock bolts installed in the intersection had been properly tensioned and grouted. The consequence of the constructor's failure to inform PB and PB's failure to enquire was that PB was not aware of the defective installation of the rock bolts in the area of the intersection. 13Nor were the difficulties with installation made apparent to PB via some other source. The geological mapping and ground support determination data produced by the geologist following daily tunnel inspections, were supplied to Mr Lloyd, PB's senior tunnel engineer. Neither the mapping, nor the data, included any information about whether rock bolts had been properly tensioned and properly grouted. Objective factors 14With regard to particulars (b) and (c) of the charge, PB's admission of guilt is confined to the failure to enquire about the rock bolts and to advise its designers about the installation of the rock bolts in the intersection. A document generated by PB in August 2004, entitled "Lane Cove Tunnel Final Design Report", discloses that part of the installed roof support devised by PB comprised CT rock bolts. The other component of the installed roof support was fibre reinforced shotcrete (shotcrete). The composite effects of both items were required for the full support of the tunnel and the intersection roof. PB produced a Specification (the Lane Cove Tunnel Rock Support Specification dated April 2005) which set out a number of requirements, including requirements for, "the installation, grouting and tensioning of the rock anchors, rock bolts and fan hangers". 15Although PB designed the construction sequence for the area of the intersection, it is important to emphasise that it has not been charged with any act or omission concerning the validity of the design, that is, the charge against PB does not allege any defect in, or inadequacy, or invalidity, of the design. 16Particular (d) is self-explanatory. The measures that should have been taken by reference to that particular was the withdrawal of Mr Lloyd from the area of the intersection and the prohibition of the other named employees from entering the intersection: see commentary on the particular in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 at [113] [114]. The risks 17The geological conditions prevailing at the intersection during the period of the charge have been set out in detail in the material extracted from the Agreed Facts. 18The risks to the safety of workers in the area of the intersection given the poor ground conditions were obvious and very serious. Moreover, PB was well-aware of the geological conditions prevailing in the area, as the Agreed Facts demonstrate. As the excavation advanced into the area of the intersection, Mr Leis, a principal designer for the area who was employed by PB, upgraded the ground support system to LCT G7 to take into account the deteriorating conditions. He produced a drawing (0059 Revision 1) dated 4 October 2005 for the modified ground support system. The drawing was expressed to provide tunnel support, taking into account the projected dyke in the intersection, as well as the span at the intersection. 19The risks were also reasonably foreseeable given the geological conditions encountered and identified in the area before the incident (namely bedrock comprising shale of low to very low strength, the occurrence of the dyke, and the highly fractured rock mass reflected in the intersecting joint plane sets and inclined fault structures). 20The geological mapping and ground support determination data, earlier adverted to in these sentencing reasons, revealed numerous identifiers or indicators of the presence of the risks at the intersection during the period of the charge. This material has been conveniently summarised by the prosecution in written submissions, and consists of the following: (a) 27-10-05 - "overbreak in crown has continued", "projections indicate dyke affected ground conditions continue" and the ground classification was "LCT G7". (b) 28-10-05 - "There continues to be a fault & jointing in the face Rock mass condition still poor-moderate" and the ground classification was "LCT G7/G8". (c) 31-10-05 - "-... exposing dyke in left (back drive) - right wall shows 2 x joint sets (orthogonal) ...", the ground classification was "LCT G7/G8 (Backdrive)" or "LCT G7 (Updrive)". (d) 01-11-05 - "ground conditions (sic) to be poor with low-med strength rock and dyke and multiple joint sets", the ground classification was "LCT G7/G8" and the estimated strength of the shale was "L-med". 21These matters reveal that PB was on notice of the risks in existence during the charge period. 22The risks could have been easily averted or avoided by the taking of three simple and obvious measures, alleged not to have been taken in particulars (b) to (d) of the charge (that is, enquiry of TJH followed by advice to PB employees, or withdrawal or prohibition of PB employees from the area of risk). Nor can there be any doubt that the risks to PB employees working in the area of the intersection (tunnel collapse and/or falling rock) could result in serious consequences, even fatal injuries. In this regard, the prosecution relies on a photograph taken after the incident forming part of the evidence which shows two persons standing in the MC5B tunnel next to what may be described as a large volume of collapsed debris situated on the floor of the MC5B. 23These factors compel the conclusion that the offence was objectively serious. Nevertheless, PB relies on a number of matters which it invites the Court to consider in assessing its culpability. 24First, it is asserted that the system of ground support which consisted of rock bolting followed by shotcreting proceeded upon the basis that the shotcrete was installed "very quickly" after the bolts were installed thereby making it impossible to observe from the floor of the tunnel whether the rocks were properly tensioned and properly grouted because the bolts themselves were effectively covered by the shotcrete. 25Accepting that to be the case, the difficulty I have with the submission is that PB by its plea has admitted that it omitted to enquire of TJH whether the rock bolts were properly tensioned and grouted. It is implicit in the allegation that the rock bolts were not properly tensioned and grouted (whether or not this was visible to the naked eye) and that an enquiry of TJH by PB would have (or should have) revealed those matters. 26Secondly, PB submitted that there was a contractual scheme, or system, in place which required TJH during the construction phase to provide requests for information (RFI) to PB on design issues and which required in turn that PB respond to such requests. According to PB, TJH made no such requests, which in the context of the charge represented a departure from the contractual scheme. TJH, according to PB, was aware of the problems with the tensioning and grouting of rock bolts and it was incumbent upon it to utilise the system in place. 27There is some force in this submission. The Agreed Facts confirm that part of the services to be provided by PB during the construction phase included PB providing responses to RFIs generated by TJH or design issues including design changes. Compliance with the system relied upon TJH making the requests. The Agreed Facts also confirm that TJH did not utilise the system in relation to the installation of the ground support in the area of the intersection (refer to Agreed Facts [47] reproduced in paragraph nine of these sentencing reasons). It was also an Agreed Fact that PB was not informed of the tensioning or grouting problems associated with the CT rock bolts prior to the incident from some other source. PB was unaware, according to the Agreed Facts, of the apparent difficulties encountered with the installation of the bolts. 28It follows from these matters that PB's failure to make the relevant enquiry of TJH may be considered by reference to the contractual scheme prevailing at the time of the offence which utilised the system of RFIs initiated by TJH and which required PB to provide an appropriate response. PB was entitled to rely on the integrity of this system, although it is not suggested by PB, nor could it be, that mere reliance on the system effectively discharged it from its obligation to make appropriate enquiry. By its plea, PB has admitted it had an obligation to enquire. PB failed in its obligation in circumstances where it was on notice of the relevant risks, and where steps were available to it to avert those risks. These findings confirm that the offence was objectively serious. 29The Agreed Facts also refer to a non-compliance/conformance procedure (NCR system) as a mechanism by which a CT rock bolt that failed installation could have been reported to TJH engineers or PB designers. According to the Agreed Facts, there are conflicting opinions about whether the NCR system should have been utilised to report failed rock bolt installations. 30According to Gregory Phillip Kotze, a consulting engineering geologist who was engaged by the prosecution to investigate the causes of the tunnel collapse and other associated matters, use of the NCR system was appropriate when the installation of rock bolts failed on more than one occasion. In his report, Mr Kotze said: As a "one-off" or isolated incident, it would be appropriate for the bolt installer to ensure that a replacement bolt is successfully installed alongside the initial bolt site. Should it happen a second time however, or at another location, a technical "non-conformance" (or equivalent) should be raised. Rock bolting (and hence further excavations) should be suspended in that area and the matter should be communicated to both engineering and geological/geotechnical personnel for joint review as to the cause of the failure to achieve tension. That is, it should be established that the cause of the failure to achieve tension was either equipment malfunction or geological conditions in the roof. Any equipment malfunctions should then be rectified. Should the failure to achieve tension be deemed related to geological conditions in the roof, geological/geotechnical and engineering design personnel should confer. 31The system was of course reliant on the failure of rock bolt installations to be brought to the attention of the PB designers. On the available evidence this was not done. 32Systems of reporting problems or potential problems associated with the ground support were therefore available, but none were utilised with the result that PB was unaware of the difficulties experienced by the constructors (TJH) with the tensioning and grouting of the rock bolts. This serves to emphasise that PB's culpability is confined (by reference to the charge) largely to a failure to enquire in circumstances where it had received no notice or indication of any problems with the rock bolting process. 33In addition to these matters, it was an agreed fact that drawing 0059 Revision 1 prepared by Mr Leis for the ground support at the intersection was certified by LCTC to RTA as complying with the requirements for the LCT Project. URS, the independent verifier, also certified drawing 0059 Revision 1 as complying with the requirements for the Project. The drawing, as the Agreed Facts record, was prepared by Mr Leis to provide modified ground support at the intersection taking into account the deteriorating geological conditions in that area, in particular, the projected dyke and the span at the intersection. 34The foregoing matters in combination help put into perspective the objective seriousness of PB's offence. PB's failure to enquire occurred in circumstances where it was entitled to rely upon TJH's systems and where it endeavoured to work effectively within those systems for the construction and design of the intersection. Deterrence 35General deterrence falls for application in this case, simply because it is incumbent upon employers to ensure that appropriate systems are in place so that workers are not being placed at risk of serous injuries from being struck by falling rock and/or tunnel collapse. There is a need to impose a penalty at a level that will draw to the attention of those operating in the tunnelling, excavation and construction industries the necessity of engaging in practices that conform to the requirements of the Act. 36Specific deterrence is also relevant although, for reasons which follow, its application should be limited to the fact that PB continues to operate in the engineering, tunnelling and construction industries, undertaking major transportation infrastructure projects which have included, and include, the Epping to Chatswood Rail Link in Sydney and the Hunter Expressway Alliance in New South Wales (currently the biggest highway project undertaken in this State). 37It was conceded by the prosecution that genuine attempts had been made by PB to develop systems and procedures before and during the charge period which were designed for the safety of employees. In an affidavit sworn by Robert Kenneth Cross employed by PB as a Group Commercial Executive, details of safety systems implemented since the incident are provided. They include the following matters: Since October 2006, the Parsons Brinckerhoff OHS management system has been independently audited and certified by a third party certifying body to meet the requirements of AS/NZS4801 Occupational Health & Safety Management Systems. Initially, certification was undertaken by NATA Certification Services International (NCIS). Since October 2011, certification has been undertaken by Det Norske Veritas (DNV). The commitment of Parsons Brinckerhoff to Occupational Health & Safety has been recognised in a number of awards: (a) In 2009, the Queensland Major Contractor's Association (QMCA) Award for Project Safety Excellence was awarded to the Jilalan Coal Stream Alliance. Parsons Brinckerhoff was a member of the Jilalan Coal Stream Alliance, which was appointed to carry out the civil engineering and infrastructure works for the upgrade of the Jilalan Railyard in central Queensland. (b) In 2009, Parsons Brinckerhoff received the Exxon Mobil 4 Year Injury Free Performance Award, in recognition of the safety performance of Parsons Brinckerhoff on a number of Exxon Mobil projects over a four year period. (c) In 2011, the QMCA award for Project Safety Excellence was awarded to the Origin Alliance. Parsons Brinckerhoff was a member of the Origin Alliance, and provided a range of design and professional services in relation to the upgrade of the Ipswich Motorway. 38In addition, PB has no prior convictions. It commenced operations in 2000 and is primarily involved in developing and operating infrastructure around the world. The PB group of companies employs approximately 14,000 people. About 2,200 employees work for the company in Australia. 39The absence of prior convictions also defines the maximum penalty for the offence as $550,000. Other subjective factors 40The absence of prior convictions in circumstances where PB has been in operation in Australia since 2000 in industries recognised as inherently dangerous suggests that PB has a good industrial record. Other evidence referred to by Mr Cross in his affidavit demonstrates that PB is a good corporate citizen. This evidence includes the following: In the period from October 2004 to date, Parsons Brinckerhoff has donated a total of approximately $508,000 to charities and community projects within Australia. Since October 2009, Parsons Brinckerhoff has committed to allocating at least 1% of all pre-tax profit to such charities and community organisations (based on 2009 financial results). In 2009, Parsons Brinckerhoff committed to national partnerships with 3 organisations over a 3 year period. Those partners are Engineers without Borders, Engineering Aid Australia, and the Royal Flying Doctor Service. In 2010, Parsons Brinckerhoff added 2 new partners to its corporate responsibility program. Those new partners are Conservation Volunteers and RYDA-Rotary Youth Driver Awareness. 41PB also provides financial assistance to a wide variety of other community and charitable organisations such as the Cancer Council, The Smith Family, Red Cross and the Salvation Army. 42According to Mr Cross, in 2009 PB became a signatory to the United Nations Global Compact which comprises a set of 10 principles that address human rights, labour, the environment and anti-corruption. In 2010, PB became a signatory to the United Nations Women's Empowerment Principles which promote gender diversity and equality. 43The prosecution, in written submissions, concedes that the following subjective factors may also be taken into account in mitigation of the objective seriousness of the offence: (i) PB entered a guilty plea at the earliest opportunity and the Court is entitled to discount the penalty by 25 per cent as reflecting the utilitarian value of the plea; (ii) PB acknowledges responsibility for its failures; (iii) PB co-operated with WorkCover. 44With regard to the early plea of guilty, the Court will discount the penalty by 25 per cent as reflecting the utilitarian value of the plea. The Court accepts that PB has exhibited contrition in relation to the circumstances of the offence by virtue of its acknowledgement of responsibility for the acts and omissions the subject of the particulars and because of the steps it has taken to ensure the safety of all employees and other persons associated with its areas of operation. The Court also takes into account PB's co-operation with the investigating authority. These matters, as well as its good industrial record and good corporate citizenship, will be taken into account in mitigation of penalty. 45The absence of prior convictions entitles PB to leniency normally extended to first-time offenders under the Act. PB's role 46According to the prosecution, TJH was the principal contractor on the Project with all the attendant duties and responsibilities associated with that role (see Reg. 210 of the Occupational Health and Safety Regulation 2001 (now repealed)). PB, on the other hand, as a specialist contractor, was required to work within TJH's system. In these circumstances, the prosecution asserts, without any further details, that TJH was either more culpable or equally as culpable as PB in the circumstances of the offence. 47The Court finds it impossible to make any appropriate assessment of PB's role by reference to the role of TJH given the complete absence of detail provided by the prosecution and without the development of any further argument on the issue. Thiess and John Holland have been separately prosecuted and sentenced for offences based on evidence and on particulars that bear very little similarity to the offence to which PB pleaded guilty: Inspector Hamilton v Thiess Pty Ltd [ACN 010 221 486] [2012] NSWIRComm 26. Moreover, both Thiess and John Holland had prior convictions and faced a different maximum penalty of $825,000. 48In addition, PB has expressed caution with regard to the Court undertaking any assessment of the comparative roles of those entities prosecuted in relation to the tunnel collapse of 2 November 2005 (although it expressed support for the prosecution's first alternative that TJH was more culpable as the principal contractor). At various stages during the course of oral submissions, PB advised the Court that it may come to the view that it "does not need to determine relative culpability", particularly where the facts relied upon in the various proceedings are different and the facts relied upon in the present proceedings cannot be considered in isolation. 49Taking these matters into account the Court is unable to consider PB's role in the circumstances of the offence by reference to those entities also charged in relation to the incident. Orders 50In IRC 1993 of 2007, the Court makes the following orders: (1) Parsons Brinckerhoff Australia Pty Limited (the defendant) is convicted of the offence and fined $105,000 with a moiety to the prosecutor. (2) The defendant is to pay the reasonable costs of the prosecutor as agreed or assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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. Decision last updated: 13 April 2012