District Court New South Wales Medium Neutral Citation: Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28 Hearing dates: 4/7/17 - 7/717; 10/7/17 – 14/7/17; 17/7/17 – 21/7/17; 26/7/17 – 27/7/17; 31/7/17 – 4/8/17; 7/8/17 – 11/8/17; 14/8/17 – 15/8/17; 17/8/17 -18/8/17; 21/8/17-22/8/17; 27/9/17 – 29/9/17; 20/11/17-23/11/17 Decision date: 28 February 2018 Jurisdiction: Criminal Before: Kearns DCJ Decision: The elements of the offence have been proved beyond reasonable doubt against Perilya Broken Hill Limited in respect of particulars 12 (e), (f), (g); 13 (d), (f), (g); 14 (b); and 15 (a), (b), (c), (d), (e) of the Second Amended Summons. I find Perilya Broken Hill Limited guilty of the offence. I will list the matter for sentence on a date convenient to the parties. Catchwords: CRIMINAL LAW – PROSECUTION – WORK HEALTH AND SAFETY Duty of person conducting business or undertaking – duty in the case of careless or disobedient worker – whether there was a risk – whether risk foreseeable – whether duty to minimise risk arose where it could be eliminated – whether a risk analysis should have been undertaken and form thereof Fall down mine shaft – fall from bucket of a loader when working at height – whether breach of duty where worker was in bucket of loader contrary to employer's policy Breach of duty – whether system for use of personal protective equipment (PPE) was appropriate – whether correct PPE used - whether PPE used was defective – whether JSA defective – appropriate procedures and content for JSA – whether defendant's policy and prohibiting use of bucket of loader should have been in writing - whether defendant provided adequate information, training and instruction – whether defendant provided adequate supervision Mistake of fact – defendant's belief that no one would use the bucket of the loader as a work platform and that nobody was required to work at heights – whether mistake of fact available to defendant – whether defendant's belief reasonably held Legislation Cited: Work Health and Safety Act 2011 (NSW); Mine Health and Safety Regulation 2007; Occupational Health and Safety Act 1983 Cases Cited: WorkCover Authority of NSW v Kellogg Aust Pty Ltd [1999] NSWIRComm 453; WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248; WorkCover Authority of NSW (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 Genner Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Guillarte) (2001) IR 57; Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; Safe Work NSW v Wollongong Glass P/L [2016] NSWDC58; WorkCover Authority of NSW (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153 Category: Principal judgment Parties: NSW Department of Planning and Environment – Stephen James Orr, Investigator, Inspector and Manager, Regulatory Audit and Investigation (Prosecutor) Perilya Broken Hill Limited (Defendant) Representation: Counsel: Mr J Agius SC with Mr C Magee appeared for the Prosecutor; Mr B Hodgkinson SC with Mr M Shume appeared for the Defendant Solicitors: Norton Rose Fulbright instructed by the Prosecutor; Colin Biggers and Paisley instructed by the Defendant File Number(s): 2014/176345 TABLE OF CONTENTS Judgment Summary and the incident Charge and plea Some preliminary matters Personnel of the defendant Other personnel The legislation The risks Particulars of the charge Elements of the offence The mining process relevant to the incident A problem and the solution – inconsistent weights; calibrate the load cells The development of the solution up to 23 May 2012 The steps taken following the exchange of emails in May 2012 The meeting of 5 June 2012 Events following the meeting of 5 June 2012 The day of the incident Events following the incident Analysis (1) Was there a risk and what was the risk? (2) Was the risk foreseen or foreseeable? (3) What measures did the defendant take to address the risks? (4) (a) Were the measures taken by the defendant adequate; (b) if not, did the defendant's failure cause Mr Pollard and/or Mr Rowbotham to be exposed to the risk? Particular 12(a) Particular 12(b) Particular 12(c) Particular 12(d) Particulars 12(e) and 12(g) Particular 12(f) Particular 13(a), (b), (c) Particular 13(d) Particular 13(e): Particular 13(f) Particular 13(g) Particular 14 (a) Particular 14(b) Particular 14(c) Particular 15(a) and 15(d) Particular 15(b) Particular 15(c) Particular 15(e) Two further points The four alternate measures CONCLUSION Judgment Summary and the incident 1. On 8 June 2012, Mark Pollard fell down a haulage shaft at a mine at Wentworth Rd, Broken Hill (the mine). At the time of the incident, he was attempting to hang some weights from the bottom of a weigh flask. The purpose of this was to calibrate an instrument called a load cell or weigh cell which measured the weight of ore in the flask. The weights were in a metal basket and the weight to be hung was approximately 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was attempting to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft. 2. Mr Pollard was secured to the bucket by means of his personal protective equipment (PPE), being a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket. 3. In the course of undertaking the task, the weights and basket came out of the bucket and so did Mr Pollard. His lanyard snapped. Mr Pollard suffered a traumatic amputation of his right leg and other injuries. 4. The mine was operated by Perilya Broken Hill Limited, the defendant. It was a wholly owned subsidiary of Perilya Limited (Perilya). 5. Mr Pollard was employed by the defendant. Mr Rowbotham was also employed by the defendant. He was working with Mr Pollard at the time of the incident. Charge and plea 1. The defendant is charged under s 32 of the Work Health and Safety Act 2011 (the Act). It is alleged it owed a duty to Mr Pollard and to Mr Rowbotham under s 19(1). It is alleged the defendant breached the duty it owed to Mr Pollard and the duty it owed to Mr Rowbotham, exposing them to risk of death or serious injury. 2. The defendant has pleaded not guilty. Some preliminary matters 1. The mine is an underground mine going down 26 levels. Access to the lower levels from the surface is via shafts and roads. 2. There was some confusion and difference in terminology in describing different levels. This concerned the area around the 25 and 26 levels. It is sufficient for present purposes to note but a few things. Level 26 was the lowest level of the mine. Above that was level 25. In between, was a sub level described in different ways. I shall refer to it, as most did, as the 26 sub level. It was sometimes referred to in the evidence as the 25 ½ level. 3. Perilya has also been charged in respect of the incident with a breach of s 32. Both proceedings were heard together. There was evidence common to both sets of proceedings. There was also evidence that was limited to the proceedings against the defendant and evidence that was limited to the proceedings against Perilya. In considering my reasons and making my determinations, I have found it convenient to deal with the cases separately. 4. References to "Tab" refer to tab dividers in Exhibit PX 1, Volumes 1 to 18. 5. A number of persons is involved in these proceedings. It is useful at this point to identify some of them and their roles at the time of the incident. Personnel of the defendant 1. Mr Slade Mr Slade was employed by the defendant. He was the manager of mining of the defendant's southern operation being the mine. 1. Mr Dally Mr Dally was the superintendent of mine services and infrastructure. 1. Mr Tavian Mr Tavian was a mine services shaft engineer and a maintenance planner. 1. Mr Gauci Mr Gauci was a relief planner / relief supervisor. He had been since August 2011 and worked in the areas of shaft infrastructure and fixed plant. 1. Messrs Ridley and Harris 1. Mr Ridley and Mr Harris were shaft and fixed plant supervisors. 2. They worked on different "panels". 3. Mr Ridley was the supervisor at work and Mr Harris was "off panel" and not at work at the time of the incident. 1. Mr Read Mr Read was the electrical project coordinator. That was the equivalent of supervisor of underground electrical projects. 1. Mr Pollard Mr Pollard was a rigger. 1. Mr Rowbotham Mr Rowbotham was a platman and crusher operator. He also had rigging qualifications obtained in 2005 [1] . He did some work as an offsider to riggers. Other personnel 1. Mr Olds 1. Mr Olds was a loader operator employed by Consolidated Mining and Civil and he was a road crew supervisor which involved maintenance of roads underground at the mine. 2. He was the loader operator working with Mr Pollard and Mr Rowbotham at the time of the incident. 1. Mr Adams 1. Mr Adams was employed by Bobos Engineering Australia Pty Limited (Bobos) as Cranes Operations Manager. 2. He was involved in the provision of chains to the defendant for the task that was to be undertaken on 8 June 2012. 1. Mr Wood Mr Wood was employed by A. Noble & Son Ltd as the Electronics Manager in the electronics division. 1. A. Noble & Son Ltd (Nobles) Nobles is a company whose business included the sale and hire of load cells and NATA accredited calibration and recalibration of load cells. It supplied load cells to the defendant. The legislation 1. Section 17 of the Act provides: A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. 1. Section 18 of the Act provides: In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. 1. Section 19 of the Act relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. … (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. 1. Section 32 of the Act relevantly provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. 1. Section 244 of the Act provides: 1. For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. 2. If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. 3. If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact. The risks 1. The risks to which it is alleged Mr Pollard and Mr Rowbotham were exposed are set out in the Second Amended Summons [2] as follows: (a) being struck and/or crushed by the weight basket whilst the Workers used the bucket of the Loader as a means of transporting the weight basket; (b) being struck and/or crushed by the weight blocks and/or weight basket whilst the Workers used the bucket of the Loader as a work platform for the purpose of attaching and hanging the weight basket by chains from the base of the North Flask and South Flask; (c) impact or crush injuries from slipping or falling onto the edges of the Loader bucket; (d) falling from heights including down the Shaft while working in the proximity of the Shaft and/or in the void of the Shaft; (e) injury caused by the movement of the Loader, the bucket of the Loader, the weight basket and/or the weight blocks, which were being used to perform the Work or were in the vicinity of the performance of the Work. Particulars of the charge 1. The particulars of the charge, as alleged in the Second Amended Summons, are as follows. The particulars of the acts or omissions in failing, so far as is reasonably practicable, to eliminate or otherwise minimise the Risks 11 The Defendant failed to provide and maintain a work environment without risks to the health and safety of the Workers in that the Defendant failed to undertake the Task by either: (a) removing each of the un-calibrated Load Cells and fitting a pre-calibrated load cell (First Alternate Measure); (b) removing each of the un-calibrated Load Cells and returning them to the Load Cell supplier for it to undertake the recalibration of the Load Cells (Second Alternate Measure); (c) adding a known weight (mass) of ore into the North Flask and South Flask via a calibrated conveyor weightometer and comparing the readings from each of the Load Cells to the known weight of ore in the North Flask and South Flask and electronically adjusting each of the Load Cells (Third Alternate Measure); (d) an in situ adjustment of each of the Load Cells using a 'test rig load cell' and 'pull down rig' and comparing the readings from the strain gauge processor of the test rig load cell to the display on the RM4 unit of each of the Load Cells, and electronically adjusting the RM4 unit of each of the Load Cells (Fourth Alternate Measure). Further alternative measures 12 In the event that the Defendant, rather than adopting the First Alternate Measure or Second Alternate Measure or Third Alternate Measure or Fourth Alternate Measure, undertook the Task by the method devised as set out in paragraph 5 hereof, the Defendant should have implemented the following measures (Control Measures): (a) the undertaking of a risk assessment of the hazards and risks of injury arising from the option selected for the adjustment of the Load Cells, the measures to be implemented to eliminate or minimise the hazards and risks the person responsible for the development and implementation of safe work procedures for adjustment of the Load Cells; (Risk Assessment) (b) the development, implementation and enforcement of a safe work procedure for the Work arising from the Risk Assessment; (Safe Work Procedure) (c) the preparation of a "safe work method statement" for the Work as required by regulation 51 of the Mine Health and Safety Regulation 2007; (SWMS) (d) the provision of plant and equipment that was suitable and safe for undertaking the Work namely: (i) plant and attachments designed to be used as a load lifting device for the transport and lifting of the weight basket, such as a loader fitted with a forklift attachment; and (ii) the provision of plant and attachments suitable for the purpose of attaching the weight basket to the base of the North Flask and South Flask; (collectively the Safe Plant and Equipment) (e) the provision of fall arrest equipment such as harnesses, lanyards and personal energy absorbers which were fit for the purpose of undertaking the Work; (PPE) (f) the development, implementation and enforcement of a documented policy prohibiting the use of the buckets of loaders as work platforms or for working at heights (Work Platforms) (g) ensure that it had and enforced a system for the use of PPE namely: (i) an inspection before being available for use by the Workers; (ii) periodic inspections by competent persons to determine whether it was in safe condition; (iii) the tagging and removal from service of any unsuitable or not fit for purpose PPE; and (iv) the requirement that PPE be stored in the safety store and issued on a shift by shift basis, (collectively the Fall Arrest Systems) 13 The Defendant failed to ensure the provision of adequate information, training and instruction that was necessary to protect the Workers from the Risks in relation to: (a) the Risk Assessment; (b) the Safe Work Procedure; (c) the SWMS; (d) the Work Platforms; (e) the Safe Plant and Equipment; (f) the PPE; (g) the Fall Arrest Systems. 14 The Defendant failed to ensure the provision of refresher training to the Workers in relation to: (a) working at heights; (b) rigging work; (c) developing risk assessments. 15 The Defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to take the following measures: (a) assess and review the adequacy of the procedures developed for undertaking the Work to ensure that it identified the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work; (b) assess the adequacy of the implementation of the Control Measures; (c) ensure that the proposed method of conducting the Work was assessed and approved by a supervisor or other suitably qualified person prior to the Work commencing, as being adequate to address the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work; (d) assess the adequacy of the Job Safety Analysis which had been developed to ensure that it identified the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work; (e) ensure that a suitably qualified and competent person was present when the Work commenced and while the Work was being performed to ensure that the Control Measures were in place and were being implemented to eliminate or otherwise minimise the Risks to the Workers to the extent reasonably practicable. 1. These particulars have been further refined by the provision of further and better particulars on several occasions from the prosecutor's solicitors to the defendant's solicitors. Elements of the offence 1. The prosecutor must establish beyond reasonable doubt: (1) that the defendant was conducting a business or undertaking; (2) that Mr Pollard and Mr Rowbotham were workers engaged by the defendant. Those matters are not in contest and they establish that the defendant had a health and safety duty within the meaning of s 32(a) of the Act. 1. The prosecutor must also establish beyond reasonable doubt: (3) that the defendant failed to comply with its health and safety duty to Mr Pollard or Mr Rowbotham or both; (4) that the failure exposed Mr Pollard or Mr Rowbotham or both to risk of death or serious injury. The mining process relevant to the incident 1. There was an amount of evidence about the mining process, much of which I do not find necessary to consider. Significantly, after a number of processes, ore found its way onto an ore conveyor. It then found its way onto the tail end of a flask conveyor. It proceeded along the flask conveyor towards the head end where it was fed into the weigh flask. The flask conveyor fed in a set amount of ore. The ore was fed in at the top of the flask at the 25 level. 2. There was a north flask and a south flask. They were relatively close. The top of each flask was at the 25 level. The base of each flask was close to a platform above 26 sub level. Each weigh flask had four lifting lugs at its base. 3. The platform above the 26 sub level was a chequer plate platform with hand rails [3] . It was about 4x4.5m. It was accessible by ladder from the 26 sub level [4] . 4. The flask conveyor stopped loading the weigh flask when a set weight of ore had been loaded into the weigh flask. The weigh flask recorded the weight through a load cell. The load cell was located above the weigh flask and was connected by a cable to a RM4-SG Load Cell Monitor [5] . 5. A load cell is a force transducer [6] . What it does and how it does it is highly technical. Again, there was an amount of evidence about this which I do not find necessary to consider. It is sufficient to note that the load cells were electronically connected to the monitor. The load cells were capable of detecting the weight of the flask and any material in the flask [7] , and could display the weight recorded in the flask [8] on the monitor of the RM4 Unit. The RM4 unit could then relay that information to another programmable logic controller which controlled the feed conveyors that transport ore into the flasks. 6. A skip came down the shaft. There was a magnet at the bottom of the skip, which picked up a sensor in the shaft and the skip stopped in a set location. The front of the flask had an air-operated arc door that opened and the ore in the flask went into the skip [9] . This occurred at the level close to the platform above the 26 sub level. 7. The skip took everything that was in the flask. That could be as much as 13 tonnes or more [10] . It was not possible to part-empty a flask [11] . The skip was hauled up to the surface and the ore in the skip was dealt with and the skip was then returned [12] . The skip was lifted to the surface of the mine by a wire winding rope using a vertical hoist winder system [13] . 8. The processes I have spoken about were fully automated and operated through a Honeywell computer system. That automation included the opening and closing of the door at the bottom of the weigh flask and the detection of the presence of the skip. It also included the operation of the winders and skips and conveyors [14] . 9. There were regular winder maintenance days at the mine. On these days, the skips were taken up to the surface and locked off at the surface. A platform was placed out below each skip covering off the top of the haulage shaft [15] . The whole system, including winder, was isolated [16] . A problem and the solution – inconsistent weights; calibrate the load cells 1. A problem had developed. There was a discrepancy between the weights being recorded on the monitor via the load cell and the weight of the ore going to the mill. That problem was apparent from January 2012. 2. A solution was devised. It was to test the calibration of the load cells on both flasks and to recalibrate if necessary. The manner in which this was to be tested was to hang a known weight from the bottom of the weigh flask. The development of the solution up to 23 May 2012 1. There was history leading up to the implementation of the task on 8 June 2012, not all of which is necessary to record. 2. Mr Dally was asked by Mr Slade in January 2012 to investigate a means of putting a known weight under the weigh flasks to do a recalibration of the load cells [17] . 3. Mr Dally informed Mr Harris of the discrepancy and the proposed solution [18] . Mr Dally left it to Mr Tavian and Mr Gauci to come up with different options [19] . 4. Mr Dally was thoroughly familiar with levels 25 and 26 and 26 sub level [20] . He said he went underground with Mr Ridley and Mr Gauci and inspected the area around 9 January 2012 [21] . The evidence around this is confusing. Documentary evidence supports the three of them were underground on 9 January 2012 [22] , but neither Mr Ridley nor Mr Gauci gave evidence of this inspection and it appears common ground that Mr Ridley did not become involved in this project until May 2012 [23] . I accept that Mr Dally undertook an inspection in January 2012. The area inspected was around 25 level and 26 sub level. 5. The platform at 26 sub level provided ready access to the lower lugs of the flasks [24] . Mr Dally thought the task of hanging the weights was a pretty simple task and he thought the job could be done from the platform above 26 sub level [25] . He thought there was no risk of falling from height [26] . 6. Mr Tavian and Mr Gauci went underground on 18 January 2012 for an inspection. They were contemplating hanging a known weight being two 3 tonne weights from the bottom of each flask [27] . The inspection took about 45 minutes [28] . 7. They took photographs [29] of the flasks and load cells [30] . Mr Gauci added text to the photographs of the flasks [31] . He then distributed the marked-up photographs to Mr Dally, Mr Harris, Mr Tavian and Mr Ridley [32] . 8. The method that Mr Gauci envisaged would be used to suspend the weights from the flasks involved using a piece of mobile plant, known as a telehandler. The telehandler would be taken to the 26 sub level and used to lift and suspend one weight at a time from the flask using slings. Ropes would be dropped down from the platform above the 26 sub level and retrieved from the 26 sub level. The idea of this was that work would be done either from the platform above 26 sub level or from the 26 sub level without any need to enter the shaft or risk of falling into the shaft [33] . Mr Gauci committed the plan to writing, but for his own purposes only. He did not share that writing with anyone [34] . 9. Mr Tavian looked at the area and he also went looking for drawings in the defendant's system. He was looking to see whether a weight could be hung cleanly [35] . He and Mr Gauci had discussions as to the best and safest way of doing the job [36] . They sought to identify risks and were satisfied that there were none [37] . 10. At the 26 sub level, there was a gate across the level near the shaft [38] . There was also an RSJ at ground level, across the level just in front of the gate [39] . 11. The two 3 tonne weights were later delivered to 26 sub level [40] . 12. In January 2012, Mr Harris went underground with Mr Stephensen. Mr Stephensen was an electrician and he attended to electrical aspects. Mr Harris observed the filling of the flask to see that it was not overflowing. It was not [41] . 13. Mr Harris reported his observations to Mr Dally and Mr Hannigan [42] . Mr Hannigan was Mr Harris's superintendent [43] . After reporting to Mr Dally and Mr Hannigan, Mr Harris discussed setting up the weights with Mr Dally and then with Mr Tavian [44] . 14. On 24 January 2012, Mr Tavian raised work orders to "CHECK WEIGH CELL CALIBRATION" by installing weights under the flask. This was for both north and south flasks [45] . Both jobs have recorded in a work order "JOB STOPPED AFTER INCIDENT" [46] . The incident was the one to Mr Pollard on 8 June 2012, even though it was months after the work orders [47] . 15. There were exchanges of emails between the defendant and Nobles from January 2012 to May 2012. The emails were related to load cells, including the supply by Nobles to the defendant of new calibrated load cell systems. There were contractual negotiations and contracts were formed concerning this. 16. The narrative continues with the receipt by the defendant from Nobles of two new load cells. One was received on 14 February 2012 and the other on 3 May 2012 [48] . 17. On 16 February 2012, Mr Gauci generated Work Order No. 628957 to replace one of the flask load cells [49] . The Work Order specifies it as for the south side flask, but it was for the north side flask [50] . 18. On 17 April 2012, Mr Tavian generated Work Order No. 641240 for the North Flask to be removed and replaced. [51] 19. On 23 April 2012, the task of removal and replacing the North Flask was completed. [52] On the same day, Mr Gauci recorded that the task of replacing the flask load cell on the north side was completed. [53] This work was also noted in the Perilya Daily Supervisor Handover Notes. It was recorded as completed in the record of the Perilya Southern Operations Team Meeting on 24 April 2012 [54] . 20. On 21 April 2012, one of two new load cell units that had been ordered by the defendant was calibrated by Nobles and a calibration report was prepared on 23 April 2012 [55] . The second of the new load cells was calibrated by Nobles on 27 April 2012 and a calibration report was prepared on 30 April 2012 [56] . 21. On 15 May 2012, the defendant raised two work orders in respect of the South Flask. The first work order in time was for "RECALIBRATE WEIGH FLASK WEIGHT UNIT" [57] . This was raised by the electrical department of the defendant. The second was for "REPLACE LOAD CELL" [58] . This was raised by the mechanical department. This was for one of the new load cells [59] . The new one was to be calibrated after it was fitted [60] . 22. On 21 May 2012, the load cell, on the South Flask, was replaced and new load cell fitted [61] . This was done in conjunction with the replacement of the South Flask [62] . 23. Also on 21 May 2012, recalibration was attempted of the new load cell [63] . The report in the Work Order of the work recorded some problems with the calibration. 24. The problems mentioned in that work order caused the defendant to contact Nobles. Mr Tavian spoke to Mr Wood on 21 or 22 May 2012. Then on 22 May 2012, Mr Tavian emailed Mr Wood with the name and contact details of Mr Trevor Read. Mr Wood then emailed Mr Tavian with a copy to Mr Read. The email discussed the problems with the calibration and it included the following [64] : The way that you can get readings that are closer to what you require is the following: You will have to recalibrate using the "CAL 1" and "CAL 2" functions again. With the "CAL 1" being the flask empty, there for this value will have to be "0" (zero) tonnes. Then put a known weight into the flask that is approximately 80% of the full load capacity, (it must be greater than 60% and up to 100% of the capacity). 1. Mr Wood's email of 22 May 2012 was forwarded by Mr Read to several people within the defendant's organisation [65] . The suggestion from Nobles of the known weight being approximately 80% of the full load capacity of the flask led to a change in the proposal in the carrying out of the task. The use of two 3 tonne weights would not meet Mr Wood's suggestion and so a greater weight was required. The job had changed as to how much weight was to be hung under the flask [66] . It was changed to three 3 tonne weights [67] . The steps taken following the exchange of emails in May 2012 1. There was a meeting on 23 May 2012 between Messrs Ridley, Dally, Hannigan, Tavian and Gauci about hanging weights [68] . This was Mr Ridley's first involvement with planning for the task [69] . 2. On or about 23 May 2012, Mr Gauci and Mr Tavian suggested to Mr Dally changing the load cells and the process to be undertaken, but were told the defendant wanted a known weight hung below the flask [70] . 3. Messrs Ridley, Tavian and Gauci went underground on 23 May 2012 [71] . They were all experienced mine shaft workers coming up with ideas, looking to see how the task could be done safely [72] . They started at 25 level and went down from there taking the ladder ways. The visit was about 45 minutes to an hour. [73] 4. They looked at the access where the bases of the flasks were. There were steel gates blocking access into the area under the flasks. The top of the gates was about 1.5m above the ground. They looked at the opening above the gates. They believed they could do the task without opening the gates. In front of the gates was a steel bar which acted as a barricade. They were satisfied there was no risk of falling at 26 sub level [74] . They were satisfied the job could be done without working at heights [75] . 5. They considered that there was room between the top of the gates and the bottom of the landing above [76] . This was important from the point of view of having sufficient space for the weights to be able to be put in place under the flask. 6. They were happy with the attachment points on the flask. They were happy to work from the landing. They discussed how they would get the slings from the level below up to the flask. Rope was mentioned and a rigger would stand up on the landing. He would lower the rope and it would be attached to the sling and the slings would be pulled up and attached to the flask [77] . 7. Mr Ridley stated that during the inspection on 23 May 2012, he did not consider what weights would be used or what plant would be used to convey the weights [78] . He said there was discussion of using chains or slings [79] . The matter was in its initial stages then and no plan had been developed [80] . 8. Mr Tavian prepared a handwritten diagram on this May inspection [81] . It reveals the diameters of the lugs of the flasks [82] . The area was in the same condition it was on the January inspection [83] . 9. Around this time, Mr Gauci was asked to identify equipment that could be used to transfer the weights and weight basket down into the mine and that could be used in attaching the weights and weight basket to the bottom of the flask. 10. On 23 May 2012, Mr Gauci took photos of the weights and weight basket. The weight basket then had a metal bracket attached to it. That needed to be removed so that it would not be an obstruction in the carrying out of the task [84] . 11. On 25 May 2012, Mr Dally instructed Mr Ridley, to the effect that the weight basket needed to be suspended from the North Flask, and then separately suspended from the South Flask. Mr Dally indicated that the weights needed to weigh at least 80% of the capacity of each of the flasks. [85] 12. On 25 May 2012, Mr Gauci, Mr Tavian and Mr Ridley went underground to the loading station at the 26 sub level. While at 26 sub level, "Mr Ridley and Mr Tavian took some measurements, including measurements of the opening at the bottom landing, the distance from the ground to the lifting lug of one of the flasks and the size of the lifting lugs. Mr Tavian and Mr Ridley then drew a sketch, wrote down the measurements of the area to ascertain whether the Weight Basket would fit in the area below each of the North Flask and South Flask." [86] 13. Mr Gauci said he remained on the 25 level talking to contractors while Mr Tavian and Mr Ridley proceeded to the 26 sub level. [87] Mr Gauci did not see Mr Tavian's handwritten sketch with measurements [88] . 14. On or about 25 May 2012, Mr Ridley asked Mr Tavian to source appropriate certified lifting slings for the job. [89] 15. On or about 25 May 2012, Mr Tavian, Mr Gauci and Mr Ridley discussed how the task would be performed [90] but did not write down any list of hazards or controls for the performance of the task. [91] 16. As at 25 May 2012, Mr Ridley had not seen any documents setting out the steps of the task. [92] 17. "On 28 May 2012, Mr Tavian intended that the Weight Basket would fit in the bucket of a loader and the Weight Basket could or should have lifting chains attached and be slung on the ground by lifting chains. The lifting chains attached to the Weight Basket could be pulled up to the next level of the Mine and the Weight Basket could be suspended with workers working on the level above. Mr Tavian and Mr Gauci discussed this plan with Mr Dally." [93] 18. On 30 May 2012, Mr Tavian and Mr Harris had a meeting to discuss the status of the task of attaching the weights to the flask. [94] During the meeting, Mr Tavian informed Mr Harris he had taken measurements of the lugs; had organised Mr Woodroffe to set up the weights; that Mr Gauci had taken photographs of the weight basket, but the task remained uncompleted. [95] 19. At some stage, Mr Tavian told Mr Slade what he was putting together and Mr Slade thought that looked good [96] . 20. Mr Slade only had limited involvement in the task. He stated that on occasions Mr Tavian and Mr Ridley had reported to him on the progress of the plan. Mr Slade recalled that Mr Tavian was preparing a series of photographs planning out the steps of the job. [97] 21. Mr Tavian showed Mr Slade some material or document he was preparing that would set out the steps to be involved in the task. [98] The document was to be shown to the workers and they would be talked through it. Mr Slade did not see any such document completed before he left the site in late May/early June 2012. [99] 22. As part of his investigations to identify a loader that could be used, Mr Gauci identified two loaders. [100] These were a R1600G loader [101] and a R2900G loader. [102] 23. The R2900G loader had been modified to be fitted with forklift tynes. However, it only had 6 tonnes lifting capacity. [103] 24. The R1600G loader was eventually used for the task. 25. A meeting was held on 1 June 2012 with an external contractor, Nick Bobos, from Bobos, who was shown photographs and sketches of the proposed area of work and told about the proposed method of undertaking the task. Mr Bobos suggested that a plumb bob be hung down from the lifting lugs on the flask to the level below to see where the weights would hang. [104] 26. On 1 June 2012, Mr Tavian asked Mr Harris to go underground, have a look at the task and run a plumb bob to make sure there was no steel work in the way when the slings were hung up [105] . 27. On 2 June 2012, Mr Harris went underground. He went to one of the lower landings on 25 level. This was probably to 26 sub level. He ran plumb bobs from the lifting lugs of the South Flask and took photos and measurements. [106] One line cleared the beam of the gate by 150mm and the other by 200mm. [107] The plumb lines were clear of obstructions. [108] The upper lugs were closer than the lower lugs to anybody working there. The photographs also showed the gate with the beam above it and another beam potentially in the way. 28. Mr Harris identified that one of the lifting lugs was unsuitable because the plumb line was impacting with one of the beams. [109] With the weighing task, the issue with this is if something touches the steel work then it will give a false reading. [110] 29. In early June 2012, Mr Harris provided Mr Tavian with the measurements he had made on 2 June 2012. [111] 30. Mr Dally made arrangements to have the metal bracket on the weight basket removed. That was a few days before the incident. 31. When the basket was placed in the bucket, it was chained to the bucket. It overhung the front of the bucket to some extent. There were slings through the slippers [112] , being apertures under the basket to take tynes of a forklift. 32. The process envisaged by Mr Dally [113] and which he conveyed to Messrs Tavian, Harris, Ridley and Gauci [114] was that ropes would be tied to the lugs on the flask. The ropes would be lowered to the 26 sub level. There, riggers would lean over the gate, grab the ropes and attach them to chains. The chains would be attached to the weight basket. The riggers would go to the platform above the 26 sub level. They would signal the loader driver to bring the load under the flask. Using the ropes, they would lift the chains up. The chains would then be attached to the shackles attached to the lugs on the flask. If the chains needed to be shortened, the loader would reverse, the load would be lowered back to the ground, the loader isolated and the chains then shortened. This process would continue until the chains were the correct length. When the chains were attached to the lugs on the flask, the bucket would be lowered sufficiently for the weight basket to hang freely. The electricians would then do their task of checking the load cell for calibration purposes. 33. The evidence of this process did not extend to the retrieval of the weight basket into the bucket after the electricians had done their task, nor any step after that. Except to the extent that the JSA may be said to cover it, this process was not committed to writing. 34. The evidence does not make it clear when Mr Dally conveyed his concept of the process to Messrs Tavian, Harris, Ridley and Gauci. Mr Dally was not at the meeting of 5 June 2012 and does not appear to have had any significant role in the planning from that point. It is likely, therefore, that he conveyed his idea of the process to Messrs Tavian, Harris, Ridley and Gauci sometime shortly before 5 June 2012. 35. Following conveying that process to them, he spoke to them further. His evidence about that was as follows [115] : Q. But, nonetheless, you told the persons you've identified, that you wanted the work done from above, and you didn't want the workers working in the bucket. A. Correct. Q. Are you sure you said that? A. Positive. 100% positive. Q. And did you expect that that would be passed on? A. Yes. Q. And did you expect that would be recorded in any JSA or Safe Work method statement? A. Yes. The meeting of 5 June 2012 1. On 5 June 2012, Mr Harris organised the meeting that took place in Mr Harris's office which was attended by Mr Harris, Mr Tavian, Mr Gauci, Mr Darren Woodroffe and Mr Pollard. At this meeting, the requirement to perform the task was discussed. [116] 2. There are various estimates of the length of the meeting. They ranged from 20 minutes up to an hour. This evidence is so unreliable I cannot make any finding about how long it lasted except that it was somewhere between 20 minutes and one hour. The meeting was organised for 8.00am [117] . That is the time of day when things started to quieten down. At the meeting, the requirement to perform the task was discussed [118] . 3. Prior to the meeting, Mr Pollard had not been down to the 26 sub level or the platform above it where the job was to be performed to examine how the task could be performed. He had not been involved in any discussion about the job. [119] 4. Mr Harris wanted everybody who was involved in the project to be at the meeting to go through any risks and any showstoppers [120] . Everybody knew what the project was. Showstoppers comprised anything that might hold up the project including maintenance or safety issues [121] . Not everybody saw safety as a purpose of the meeting [122] . 5. Not everybody at the meeting recalled the materials that were present at it. I am satisfied, however, that the following were there: 1. the photographs, without the written script and markings on them, taken by Mr Gauci on 18 January 2012 [123] ; 2. the photographs taken by Mr Harris on 2 June 2012 [124] ; 3. Mr Tavian's sketch [125] . 1. As to Mr Tavian's sketch, Mr Gauci said it was not present before agreeing in cross-examination that it might have been, but he did not see it [126] . His explanation that this part of the job had nothing to do with him is an unsatisfactory explanation for not seeing a document in circumstances where Mr Gauci was a planner and where the meeting was called by Mr Harris as he "wanted everyone to be there, and go through any risks, any show-stoppers" and he "wanted everyone face to face … so were knew exactly – everyone's on the same page, that we're going to do this task safely" and "That's why I called the meeting so everyone knew what we were going to do, analyse the risk – what's going on, work out the showstoppers" [127] and "No one left the room until we were all on the same page, that's why we had the meeting face to face" [128] . For Mr Gauci not to have seen this document was a manifestation of the ideals of this meeting not being met in all respects. It is even stranger that he thought that document or that part of the process had nothing to do with him [129] . 2. At the beginning of the meeting Mr Gauci explained the job: I said what we planned on was to have a loaded weight in the bucket, have it all connected with your chains, Mark Pollard, at the time I didn't know who was going to be on doing the job, but the two men doing the job would be on the platform above – lower down some tag lines, connect them to your chains, contact the loader driver, operate, raise the bucket, as they raise the bucket raise the chains up once it's in position, high enough, connect the shackles onto the lifting points on the flask, once it's all connected drop the bucket slightly to suspend the load and electricians calibrate the job, the load cell. [130] 1. It will be noted that this explanation of the process was not as extensive as that given by Mr Dally in evidence [131] . 2. When confronted with questions about this meeting, Mr Pollard had no recollection of it at all [132] . He did have a recollection of some matters that were discussed with him and it is almost certain that some of that recollection was of matters that were discussed in that meeting. 3. Mr Pollard's limited recollection includes the following. * He had a meeting with Mr Harris and Mr Ridley the day before the incident. He may have had a meeting the day before the incident, but it could not have included both Mr Harris and Mr Ridley as they worked on separate panels and were not at work together that day. * He had not seen Mr Tavian's sketch [133] at any time before the incident [134] . * The first he was aware he would be doing this job was the day before the incident when he was told at the meeting [135] . Overwhelming evidence establishes he knew about it at least from the meeting three days before the incident. * At a meeting, he saw the photos with the plumb lines [136] . Almost certainly that occurred at the meeting of 5 June 2012. He said he was not told why he was being shown the photos [137] . * At a meeting, he was told in a general sense what the job was, but no detail [138] . * He has no recollection of any meeting before the incident at which Mr Gauci and Mr Tavian were present [139] . 1. In light of this, and other evidence where Mr Pollard's recollection is established to be faulty, I draw on the evidence of the others at the meeting of 5 June 2012 for my findings as to what was discussed. 2. In written submissions the defendant stated: "At the meeting the following topics/issues were addressed: a. to present all the information, get the weights together and get some actions happening [140] b. That chains would be required to suspend the load from the flasks [141] c. The configuration of the chains and the way chains would be hung [142] d. That the longer legs of the chains would be attached to the lugs on the flask like Mr Pollard attached them [143] e. That the chains would be adjusted on the ground [144] f. Mr Pollard was asked for his advice on slinging the load and he identified the need to sling the load around the basket rather than using the lifting lugs otherwise it would be too long [145] g. Mr Tavian was talking to his handwritten document and the plumb bob photos explaining [146] h. They were going to drop the rope down, pull up the slings and connect it to the flask [147] " 1. The references supplied do not support that a. to e. were discussed at the meeting. They were matters Mr Tavian had considered before the meeting. 2. The evidence varies as to what was discussed at the meeting. 3. Mr Gauci's evidence was as set out at [112]. He also added [148] , Q. Now, in what you just said there's nothing about adjusting the chains, did you say anything about how it would be that the correct length of chain would be known, to permit the task to be completed in the way you've just described? A. We had measurements on the photos, we took measurements, we designed the job, we explained to the rigger and supervisor how the job we thought could go ahead, and then it was up to them to fine tune it? Q. Sorry‑‑ A. So if he's the rigger it's his job, that's his department. Q. By, "Up to them to fine tune it." You understood that if the chains needed to be adjusted then it was up to him to determine how it, how best to effect those adjustments? A. Yes, he's got the experience. Q. And what other fine tuning did you have in mind that he might need to employ, or did you know? A. I didn't know. 1. The reference to "fine tuning" was not something Mr Gauci said to Mr Pollard, but something he expected he would understand from what was said to him [149] . 2. There was elaboration of this in cross-examination [150] : Q. But you do recall a conversation that you were involved in with Mr Pollard? A. Yes. Q. And in that conversation that - you discussed or you set out the work methodology‑‑ A. Yes. Q. Is that right? A. Yes. Q. Is there any doubt in your mind about that? A. No. Q. And you said that, the loader would take the weight in the bucket, that it would be all chained and connected up. Is that right? A. Yes, yes. Q. Words to that effect. A. Yes. Q. And that was whilst, did you mention that, that would be whilst the loader bucket was on the ground at the sublevel 26? A. Yes. Q. And that the two men doing the job would then go up to the platform above. A. Yes. Q. Any doubt that you said words to that effect? A. No, that's - that's what - that's what I said, all the work will be done from the level - from the platform above. Q. And that you'd lower the rope down, sorry, that the - I'm sorry, did you mention when the rope would be lowered to - down to connect to the chains? A. Yes. Q. And what did you say about that topic? A. Lower the ropes down before the buckets in - in - close to position. Q. And so is that when it was on the ground in‑‑ A. When it was on the ground, yes. Q. You then went on and you told us the methodology earlier. Do you recall what Mr Pollard responded to you? A. Not exactly, no. Q. Doing the best you can, can you tell us words, to the effect, of what you recall Mr Pollard saying to you when you were talking to him and telling him about this work methodology? A. He agreed, he did not disagree. 1. In re-examination in relation to that last answer, Mr Gauci said he could not remember what Mr Pollard said, but he did not disagree. He cannot remember anything he said by way of agreement and all this was before the chains to be used had been identified [151] . 2. Mr Tavian gave evidence that he discussed with Mr Pollard aspects of slinging the load [152] : Q. Do you recall whether or not you actually discussed how you were going to sling the load, at the meeting? A. I - I recall, like, asking Mark for his advice. He was our head rigger. He's the - the expert, so we were asking him for his input, his opinions. Q. Do you recall what he said? A. I recall that we couldn't use the - the lugs on top of the basket, because it would be too - it would make everything too - too long. I recall that we had to, like - I don't know the correct terminology, but hold - hold it, like, in a basket, and, like, cradle it, with like - like, a sling all the way around it, so - because we couldn't use the lugs. 1. Mr Harris gave the following evidence [153] : Q. Do you have any recollection of what was discussed in that meeting as to the method they were going to use to hang the weights from the flask? A. Yes, I had recollection of what they were doing. Q. What is that recollection? A. That they were going to drop the rope down, pull up the slings and connect it to the flask, Mr Gauci was talking to Mr Pollard about that. … A. I said to Mark, "Do you understand the system what we're doing?" And he goes, "yes", he was going to wrap the sling around the weight in his lingo, he was going to pull it back and everything's not a problem, I said, "So you understand what we're doing?" And he said, "Yes, I do." No one left the room until we were all on the same page, that's why we had the meeting face to face. 1. I am satisfied that what was discussed at the meeting was the following: * the weight would be in the bucket; * the weight would be connected with chains; * the men doing the job would be on the platform above the level; * they would lower tag lines and connect them to the chains, pull the chains up and connect them to the flask; * the loader driver would operate and raise the bucket; * shackles would be connected to the lifting points on the flask; * the bucket would be dropped slightly to suspend the load; * electricians would calibrate the load cell. 1. What was left unsaid was: * what would be suitable chains; * how the chains would be adjusted for length if need be; * how the weight basket would be retrieved back into the bucket after the electricians had calibrated the load cell. There was a complication here with the weight basket likely to pendulum out from the bucket when suspended; * any fine tuning that might be required that the defendant was not aware of; * where either or both of the workers would be on occasions when the loader was moving towards or away from the shaft. 1. Mr Pollard did not disagree with the work methodology [154] and he told Mr Harris he understood the system [155] . 2. Not all the materials at the meeting were shared with everyone and not all topics were discussed with everyone. As noted earlier, Mr Gauci did not see Mr Tavian's sketch. Mr Gauci was not told the relevance of the markings "150mm" and "200mm" on the photographs taken on 2 June 2012 [156] . He was not told what the plumb lines were connected to [157] . 3. Mr Gauci said that at the meeting, there were no measurements available of the height of the gate across the shaft on the 26 sub level [158] or the available space above the gate and beneath the first obstruction through which the load would have to pass. That was something that had to be worked out by the men at the job. 4. There was no discussion at the meeting on 5 June 2012 about preparing a risk assessment [159] or a JSA [160] or any other safety or risk assessment document. 5. Mr Pollard was asked to commence the process of putting the equipment together with Mr Woodroffe [161] . He and Mr Woodroffe went from the meeting to do that [162] . Events following the meeting of 5 June 2012 1. "After the meeting on 5 June 2012, Mr Pollard and Mr Woodroffe went to look at what chains were required for the Work. Mr Pollard subsequently told Mr Tavian that he was unable to locate the appropriate lifting chains. Mr Tavian then called Bradley Adams at Bobos and sought his assistance in obtaining the correct lifting chains suitable for the Task." [163] Mr Tavian asked Mr Adams to come to the site and have a look [164] . 2. "Whilst waiting for Mr Adams to attend the Mine, Mr Pollard located slings which were capable of lifting the load in the Weight Basket. He also had gathered some lifting chains to tether the Weight Basket to the bucket of the Loader." [165] 3. Mr Adams was to supply suitable rigging gear. Mr Adams went to the mine and spoke to Mr Pollard [166] and discussed the project. He spoke to Mr Pollard in the rigging shed [167] . He saw the basket with the weights in it [168] . Mr Pollard did not explain to Mr Adams how the task was planned to be undertaken [169] . There were no slings in the basket at that time. Mr Adams was told the basket was to be hung from the weigh flask. They spoke about the chains. Thirteen millimetre chains were suggested [170] . Mr Adams said 16mm was required for the weight and 16mm chains were ultimately supplied. 4. A chain set [171] was set out in the well of the Court. Mr Adams thought there was no difference between that set and the set that was supplied. What was supplied was a set of 3m chains with two legs, bull ring, two shorteners and self-locking hooks [172] . They are the same as in the photograph at Exhibit PX 1, Vol 16, Tab 425, p3510. 5. Mr Tavian was involved in arranging for weighing of the equipment [173] . 6. Mr Adams arranged for the weighing of the weight basket and associated slinging equipment [174] . The weights and the basket and also the chains were both weighed on 6 June 2012, the weights and weight basket in the morning and the slinging equipment in the afternoon. The weight basket weighed 9.8 tonnes and the chains 0.06 tonne [175] . 7. The supervisors worked on a system of panels. On 6 June 2012, Mr Harris went off panel and Mr Ridley came back on. He started as normal about 5.45am. Mr Harris informed Mr Ridley about the meeting of 5 June [176] . Mr Harris did not advise Mr Ridley of the specifics of what was discussed at the meeting. [177] 8. There were regular supervisors' meetings each day about 6.10am [178] . There was one on 7 June 2012. Mr Ridley said Mr Olds was at it [179] . However, I accept Mr Olds's evidence that he was not normally at these supervisors' meetings as his field of work did not come under the agenda of these supervisors' meetings. I accept he was not at the supervisors' meeting on 7 June 2012. It was to put to Mr Olds that he attended the supervisors' meeting at the beginning of each day and he denied it [180] . The only meetings he went to were meetings involving "our blokes", a tool box meeting or a pre-start meeting [181] . He would go to scheduling meetings on Tuesdays concerning road repairs and the like [182] . "We were requested for man power" [183] . I accept, however, there was a discussion between Mr Ridley and Mr Olds after that meeting. It was a discussion about getting the loader to the back of the riggers' shed to be loaded with the basket and weights [184] . 9. There was an issue about the availability of the loader, but that was sorted out by Mr Dally [185] . That issue concerned the certification of the loader to go underground. 10. There was then a shift crew meeting at 7.00am on 7 June 2012. There was discussion between Messrs Pollard and Ridley. There were further happenings during the day before Messrs Ridley, Pollard, Woodroffe and Olds all met at the riggers' shed. The basket with weights was loaded into the loader [186] . By this time, the metal bracket had been removed from it. The weight basket was placed centrally in the bucket of the loader. It was placed in lengthwise [187] . Part of the basket protruded over the front of the bucket. The basket was secured to the bucket with a chain [188] . Mr Pollard put slings through the slippers and they were bunched on top of the basket [189] . 11. After the basket was loaded into the bucket, the bucket was raised off the ground about two feet and tilted [190] . This was to see that Mr Olds was comfortable with the loader bearing and carrying the weight. Mr Olds denies this [191] . Mr Ridley says there was a lift [192] and so does Mr Pollard [193] and I accept that evidence. 12. The loader with weights was taken down to 25 level later that day on 7 June 2012. Mr Olds drove it underground [194] , reversing it down [195] . 13. After that, Mr Ridley then asked Mr Pollard if he was "right for tomorrow" and he responded "Yes". Asked if he had everything he needed, he responded "Yes". Mr Ridley told Mr Pollard he was going to swap the inexperienced Mr Kelly for the experienced Mr Rowbotham [196] . The day of the incident 1. 8 June 2012 was a winder maintenance day and everybody knew that [197] . It was the day planned for the task because everything was shut down for maintenance that day. Items in any proximity to the area where the work was to be done would not function. That included conveyors, weigh flasks and skips. The skips were at the top [198] . A purpose-designed platform was out under the skips and blocked off the haulage shaft. 2. On 8 June 2012, Mr Ridley commenced about 5.45am as usual. He spoke to Mr Gauci [199] . He asked him to get all the paperwork ready [200] . He attended a supervisors' meeting around 6.10am. After the supervisors' meeting, he had a discussion with Mr Olds and told Mr Olds that Mr Pollard would be in charge [201] . He also told Mr Olds to go to 26 sub level and meet Mr Pollard there. Mr Ridley told him that Mr Pollard knew what was going on [202] . Mr Ridley told Mr Olds he would be down later. Mr Olds does not remember the meeting with Mr Ridley but I accept it occurred. 3. Mr Ridley then conducted the shift start-up meeting at 7.00am. He had a discussion with Mr Rowbotham [203] . He told him he would be assisting Mr Pollard and told him he would need to read and sign the JSA and do a 3TC. He also had a discussion with Mr Pollard [204] . Mr Rowbotham said he was at the start-up meeting on 8 June 2012 when Mr Ridley told Mr Pollard that he would be hanging weight from the bottom of the flask [205] . 4. Mr Pollard was aware that Mr Ridley told Mr Rowbotham he would be working with Mr Pollard. He was also aware that Mr Ridley had told Mr Vartuli and Mr Williams that they were to help Mr Pollard if need be [206] . Mr Vartuli and Mr Williams would be working on 25 level. Mr Pollard was told to take his time [207] . Mr Ridley told him he would be attending the site after attending a job at 21 level [208] . He told him he would be on his way after visiting 21 level. He told him to grab all the gear he needed, do a JSA and return to Mr Ridley's office with it. 5. At the time he prepared the JSA, Mr Pollard had not thought about how he was going to sling the weight basket under the flask. [209] He envisaged that a cord would be used to pull the shackles and chains up from the 26 sub level to the bottom of the flask. He had Mr Rowbotham in mind to undertake that part of the task [210] . When he was writing out the JSA he did not have any thought as to whether he would be working from the bucket of a loader. [211] 6. About 7.50am, Mr Pollard attended Mr Ridley's office with the JSA completed by him. It was as follows [212] : JSA text version (57.7 KB, rtf) | JSA text version (191 KB, pdf) 1. Mr Ridley signed the JSA [213] . Mr Ridley looked at the JSA and gave it back to Mr Pollard. Mr Ridley considered the JSA was adequate. [214] There was no further discussion between Mr Pollard and Mr Ridley about the contents of the JSA. [215] 2. There was, however, further discussion about the job. 3. In the further discussion about the job, Mr Ridley's evidence was at times inconsistent and unreliable. At one point he said [216] , Q. In terms of the brief touching of the job, what did you say? A. We just spoke, I just said, "Look, grab all your gear," I said, "The loaders down there," I elaborated that you just got to pull the chains up on the landing, you stand on the bottom landing, pull the chains up, attach the chains and you could have a direct vision with the loader driver from that landing. And I said, "All you got to do is lower that 6 inches and then we can calibrate the weight of it." 1. Later he agreed it was possible that he did not give Mr Pollard any specific instructions as to where he was to perform the task of attaching the chains [217] . Then he said he had not envisaged there would be a need to shorten the chains [218] and he followed that by saying he envisaged that would be done on the floor level [219] . 2. Mr Ridley agreed he did not tell Mr Rowbotham he was only to work up on the landing [220] . He could not remember telling Mr Olds [221] . 3. I am satisfied that Mr Pollard was not told specifically not to work from the bucket of the loader, nor was he told specifically to work only from 26 sub level or the platform above. The same applies to Mr Rowbotham and Mr Olds. [222] 4. Mr Ridley instructed Mr Pollard [223] to complete a "Take Time Take Charge" [224] (3TC), which was a risk assessment document [225] . 5. "Mr Pollard travelled to the 26 sub level where he met with Mr Rowbotham and Mr Olds. Mr Pollard discussed the Work and asked them to sign the JSA. Mr Olds raised concerns about Mr Pollard's intention to use the bucket of the Loader as an elevated work platform. Mr Pollard told Mr Olds that he would be using height safety equipment attached to the bucket of the Loader during the Work and that the procedure had been discussed with his supervisors." [226] Although this is an agreed fact, it is of little utility. Because of its generality it is capable of conveying false impressions. An example is the first sentence. Mr Pollard certainly travelled to the 26 sub level and met with Mr Rowbotham and Mr Olds. The impression may be conveyed that he met them both when he arrived there. He did not. He met first with Mr Olds and had some time and discussion with him before Mr Rowbotham appeared coming from the 25 level. Likewise, the second sentence. An impression that Mr Pollard discussed the work "and asked them to sign the JSA" simultaneously would be far from correct. The discussions were separate. An impression that they signed the JSA almost simultaneously would be wrong. They did not. The agreed fact does not even note the signing of the JSA by Mr Olds or Mr Rowbotham. More significantly, the agreed fact is capable of giving the impression that Mr Olds's concerns and Mr Pollard telling Mr Olds about the discussion with the supervisors occurred before the signing of the JSA by Mr Olds. I am satisfied those matters did not occur until shortly before the lift to move the weights into the shaft. 1. I reject any suggestion that in telling Mr Olds that he had discussed the project with his supervisors Mr Pollard lied to Mr Olds by telling him that he had discussed with his supervisors working from the bucket and that the supervisors had approved of that. 2. Mr Pollard and Mr Olds waited for Mr Rowbotham [227] . Mr Pollard said Mr Rowbotham arrived at the job site by walking down the decline [228] . I think he is wrong about that. I am satisfied Mr Rowbotham used the ladder way that was nearby. He had come down from the 25 level. 3. What happened is that Mr Pollard travelled down in the cage to 25 level with Mr Rowbotham [229] . I accept his evidence about that. He had told Mr Rowbotham to bring his fall arrest equipment with him. Mr Pollard had his gear in a wheelbarrow [230] . At the 25 level, he put his gear into a bucket of a Kubota [231] and moved that to the 26 sub level. There, he put his gear on top of the weight basket [232] . 4. Meanwhile, Mr Olds had gone down to 25 level. He moved his loader to a point at the 26 sub level where he was confronted by an "Authorised Persons Only" (APO) sign. He waited for Mr Pollard to arrive and remove the sign. When Mr Pollard arrived, he obtained authorisation to remove the sign and removed it. Mr Pollard obtained that authorisation at 8.34am. When it was removed, Mr Olds then moved the loader onto the 26 sub level. 5. After he moved and parked the vehicle on the level, Mr Pollard produced the JSA. Mr Olds quickly looked at it, did not see anything that alerted him to anything and signed it [233] . 6. Mr Olds did not know what the job process was going to be [234] . Mr Pollard explained the job process to Mr Olds [235] . Mr Pollard told Mr Olds the loader had to be placed under the shaft lifting the weights up under the flask [236] . He did not say anything to Mr Olds about getting into the bucket to do the work until shortly before the lift [237] . 7. Mr Pollard recalled telling Mr Olds that they were going to take the weight basket with the weights in the loader bucket out underneath the flask and hang it underneath the flask. They were then going to get him to lower the bucket by about 6 inches, then have a look at the weight monitor on the flask to see if it was reading correctly, and then do the same on the other side. He also told Mr Olds that they were going to use chains on the bottom of the flask and sling it up to the weight basket and then get him to lower the loader bucket. [238] 8. Mr Olds thought that Mr Pollard must have been permitted by his supervisors to get in the bucket [239] . What Mr Pollard told Mr Olds about that is not clear from Mr Olds's evidence. The evidence varies. He said: * that he and Mr Pollard did not discuss what the supervisors said [240] ; * he could not remember if Mr Pollard said he had permission to be in the bucket [241] ; * he would be guessing [242] ; * he had discussed the work methodology, including getting in the bucket, with his supervisors [243] . When his memory was refreshed from an earlier statement, he said Mr Pollard had told him that his supervisors had given "permission" [244] . In re-examination, he said that was not permission to get in the bucket, but permission to proceed in accordance with the JSA [245] . He said Mr Pollard did not tell him he had permission from his supervisors to get in the bucket [246] . 1. I am satisfied Mr Pollard had not discussed with his supervisors getting in the bucket, he did not have permission from them to do that and I do not accept that he told Mr Olds that he did. 2. A lot of detailed evidence as to what happened at the level is not important. What is important is that Mr Pollard had Mr Olds and Mr Rowbotham sign the JSA. They did so, neither of them reading it in any detail. Mr Pollard's evidence was that he only decided to work from the bucket when he got to the 26 sub level [247] . He told Department [248] inspectors he intended to work from the bucket from when he became aware of the job, possibly the day before. He said he was incorrect in what he told the inspectors and that he should have said "No" in answer to their question [249] . I accept his evidence about that. The JSA prepared by him is consistent with the fact that he did not have in contemplation working in the shaft from the bucket of the loader when he prepared it [250] . So are his explanations, as I find them, of the task to Mr Olds and Mr Rowbotham. 3. When Mr Rowbotham arrived, Mr Pollard explained the job process to him [251] . Mr Rowbotham says he was told to climb to the level above the loader and lower the rope [252] to which Mr Pollard could attach the shackles. He would then pull the rope up with the shackles. He was to put the shackles onto the flask's lugs and lower the rope again. Mr Pollard would hook one of the chains to the rope for him to pull the chain up. Then he was to hook the chain to the shackle and do the same thing again with the other side of the chain. [253] 4. Whether he told Mr Rowbotham then about working from the bucket is the subject of conflicting evidence from Mr Pollard. At one point he said he told Mr Olds that they would both be in the bucket and he told him that before Mr Rowbotham arrived [254] . He also said he told Mr Rowbotham this before his signed the JSA [255] . At a later point he agreed he had not told Mr Rowbotham that before he signed the JSA [256] . Mr Rowbotham does not say that he was informed he would be in the bucket before he signed the JSA. 5. Mr Rowbotham said Mr Pollard told him about the job after he signed the JSA [257] . There was no mention in that evidence about where the job would be done from. In cross-examination, he said there was no mention in that conversation of working from the bucket of the loader [258] . 6. I accept that Mr Rowbotham was not told about working from the bucket of the loader at the time of his signing the JSA. 7. When Mr Rowbotham arrived, the JSA was already signed by the others. Mr Rowbotham did not take much notice of it. Mr Pollard told him to sign it and he did [259] . He had faith in Mr Pollard [260] . 8. At the time he read the JSA Mr Rowbotham had never done any similar work to the work involved in attaching weights to the bottom of the flasks. Nor had he done any work on the flasks or in the vicinity of where the lugs were on the flasks. [261] 9. "At the 26 sub level, Mr Pollard and Mr Olds decided that a trial lift was to be conducted to check that the loader could lift the bucket containing the weight basket over the gate. The chains tethering the weight basket into the bucket of the loader to prevent slippage of the weight basket were removed". [262] Although this is an agreed fact, it can be misleading. The fact is the tethering chains were removed. The agreed fact is capable of conveying the impression that they were removed before the trial lift. They were removed after. [263] 10. "No person was present in the bucket of the loader during the trial lift. The weight basket was lifted into the shaft below the North Flask and then the loader reversed and the bucket was lowered back to the ground without incident or Mr Olds identifying any issue with the operation of the loader". [264] 11. Mr Pollard completed a 3TC for the work [265] . He did so before Mr Rowbotham joined him at the 26 sub level [266] . A copy of it is incorporated here: 3TC text version (91.2 KB, rtf) | 3TC text version (205 KB, pdf) 1. The 3TC records a time of 8.00am. Mr Pollard said he completed it when on 26 sub level, after the loader was already there [267] . That was after 8.34am as it was 8.34am when he rang from the level to get the authorisation for the removal of the APO sign. He also said he did not necessarily put an accurate time on his 3TCs when he completed them, but only an approximate time. Even on that explanation I think 8.00am is too far removed from the time the loader was on the 26 sub level for him to have written 8.00am as the time he completed his 3TC, unless he wrote 8.00am by mistake. 9.00am or close thereto is the likely time he completed it. 2. There is conflict in the evidence as to the precise sequence of events following the commencement of the job process. This conflict does not bear on a resolution of the issues. 3. In the movements of the loader, Mr Olds was taking directions from Mr Pollard. When he was ready, Mr Pollard gave Mr Olds a signal to move forward. He did so, stopping about two to three feet short of the fence. Mr Pollard then got in the bucket. 4. Mr Pollard, wearing his safety harness, attached his lanyard to the bucket [268] . The harness had shoulder straps, a sternum strap and leg straps. It had three clips, one for each leg strap and one for the sternum strap [269] . It had a dorsal ring (D-ring), being the point on the harness for the lanyard to be connected to. 5. Mr Pollard attached his lanyard to the bucket by passing the connector at one end of the lanyard under a bar in the bucket, bringing that connector back over the bar and attaching the connector then to the lanyard (a process called "reeving"). The other end of his lanyard was attached to his harness. 6. Mr Olds was then directed to lift the bucket and move forward. Mr Olds moved forward until the bucket was under the flask. Mr Pollard was working in the bucket. 7. By the time this happened, Mr Rowbotham had ascended the ladder way to the platform above 26 sub level. He took the rope with him. The precise sequence of events hereafter is not clear and nor does it matter greatly. I am satisfied though that relevantly it was as follows: 1. Mr Rowbotham lowered the rope; 2. Mr Pollard, working in the bucket, tied the rope to the shackles; 3. Mr Rowbotham pulled the rope up with the shackles. He attached the shackles to the lugs [270] . He lowered the rope again. This time, Mr Pollard, still working in the bucket, tied the rope to the clevis hooks; 4. Mr Rowbotham pulled up the rope with the clevis hooks to which the chains were attached; 5. Mr Rowbotham attached the hooks to the shackles. At that stage, the chains were too long. They needed to be shortened. Mr Pollard, still working in the bucket, proceeded to do that. He was able to shorten one leg. He was having difficulty with the other leg. He mentioned this to Mr Rowbotham. Either he sought Mr Rowbotham's help or Mr Rowbotham offered to help; 6. Mr Rowbotham climbed down the ladder way onto the 26 sub level [271] ; 7. the loader was moved back and the bucket lowered, but not to ground level. The front part of it was just above the gate. Mr Rowbotham climbed into the bucket whilst it was still elevated. [272] There is conflict in the evidence between Mr Rowbotham and Mr Olds as to how he did that, but it does not matter. 8. Mr Rowbotham climbed into the bucket and attached his harness. With the weight basket in the bucket of the front-end loader, there was little room for Mr Pollard and Mr Rowbotham to fit. They did, on opposite sides of the weight basket. The loader moved forward so that the bucket was again under the flask; 9. in the course of undertaking work to shorten the chain, Mr Pollard directed Mr Olds to raise the bucket. He did so about 30 to 40 centimetres. In the process, Mr Rowbotham crouched to avoid contact with the steel work; 10. As the bucket was moving up Mr Pollard said to Mr Rowbotham that he would need to watch his head on the steelwork and Mr Rowbotham just ducked down a bit. Mr Rowbotham then moved into a crouched position in the bucket. He could still see Mr Pollard signalling to Mr Olds. The chains were then shortened a second time by Mr Rowbotham and Mr Pollard. The bucket then needed to be raised further so that the slings around the weight basket could be attached to the chains [273] . Mr Pollard used hand signals to signal to Mr Olds to move the bucket higher [274] ; 11. Mr Pollard gave Mr Olds the signal to stop; 12. the loader stopped and simultaneously or very shortly after that, there was a "jerk" like a "tilt in the loader bucket" [275] and the weight and Mr Pollard came out of the bucket. Mr Pollard fell to the bottom of the shaft and, in the process, his right leg was amputated. Events following the incident 1. Mr Rowbotham made efforts to rescue Mr Pollard. He was unable to do so as he had to wade through deep mud and water and could not get through. He was still wearing his harness and lanyard at the time and they were submerged in muddy water. 2. Mr Pollard lay at the bottom of the shaft in muddy conditions and buried up to his shoulders. In the course of his fall, his lanyard snapped. One part of it remained attached to the bucket. The other part is missing. It is not known what happened to it. It may or may not have been attached to Mr Pollard's harness when he was rescued. 3. When he went to the surface, Mr Rowbotham put his harness and lanyard on a bench in the Marble Arch, then ultimately in his locker [276] . That was the practice. 4. On 13 June 2012, Inspector Smith attended the mine with a number of others. On that occasion, Mr Pollard's harness was removed from a red esky where it had been stored [277] . 5. On 14 June 2012, Inspector Smith attended the site and made some observations about it. He identified: * some harnesses had not been subject to a safety inspection by Bullivants Pty Ltd [278] ; * some harnesses and lanyards were being stored in a workshop locker, outside of the defendant's store [279] . They were apparently outside the defendant's inspection system [280] ; * there were two rope lanyard styles, one with energy absorber device built in and the other without [281] ; * some lanyards had Bullivants tags and others did not [282] ; * some height safety equipment had number tags and energy absorber devices attached to them. Mr Pollard's and Mr Rowbotham's harnesses and lanyards did not have similar number tags [283] ; * a written safety harness issue register identified a numbering system for height safety equipment. There were three entries for 8 June 2012, but none for Mr Pollard or Mr Rowbotham [284] ; * at the supervisors' office were two harnesses and two lanyards, both with energy absorber devices attached. One of the harnesses had a number 2 tag on it [285] ; * the harnesses and lanyards in the supervisors' office for personal use were not entered on the safety harness issue register for the period 4 June 2012 to 14 June 2012 [286] . It appears they were outside the inspection system [287] . 1. On 26 June 2012, Mr Bannerman attended the mine for the purpose of carrying out visual safety inspections on height safety equipment. Relevantly, he examined harnesses and lanyards. He passed some and he failed some. As to harnesses and lanyards that Mr Bannerman passed, he recorded details [288] . As to harnesses and lanyards that Mr Bannerman failed, he tagged them and deposited them in a skip [289] . He failed between 50 and 60 [290] . 2. On 28 June 2012, inspectors attended at the mine and conducted tests on the loader [291] . Analysis 1. I shall address the following questions: 1. Was there a risk and what was the risk? 2. Was the risk foreseen or foreseeable? 3. What measures did the defendant take to address the risk? 4. (a) Were the measures taken by the defendant adequate; (b) if not, did the defendant's failure cause Mr Pollard and/or Mr Rowbotham to be exposed to the risk? 1. It will be evident that these questions need some refinement. (1) Was there a risk and what was the risk? 1. I am not satisfied there was risk to the workers when the bucket of the loader was stationary on the ground. 2. I am satisfied there was risk to the workers when the bucket was elevated and the workers were in it or when the loader was moving. 3. The case for existence of risk when the bucket was elevated and the workers were in it is compelling. This risk extends to falling from the bucket and also impact or crush injury. The risk is obvious. That workers could fall from an elevated bucket only has to be stated to be accepted. Equally, that workers in a bucket could be crushed by an unrestrained near-10 tonne weight, when there was a low coefficient of friction between that weight and the metal surface on which it was resting, only has to be stated to be accepted. [292] There was a risk that with a jolt or some mishap, the basket could shift in the bucket. If it did, Mr Pollard and/or Mr Rowbotham were liable to be crushed. 4. Further, the defendant acknowledged the foreseeability of the risk of working from a bucket at height [293] . Inherent in that is an acknowledgment of the existence of a risk to workers working from the bucket. 5. Further, there was the possibility that after releasing the restraining chain, the workers could have remained in the bucket. Mr Slade agreed that after securing a load in a bucket, there was a risk that a worker might stay in the bucket after it was lifted. Whilst there was an unwritten rule against working from the bucket of a loader at heights, he agreed there was a possibility that the rule could be violated. [294] 6. The risk also included the risk of injury from impact with the edges of the bucket. This is because the workers, restrained as they were in the bucket, could have fallen over the sides or front of the bucket and in the process impacted with the edges of the bucket. 7. There was risk of injury also caused by the movement of the loader. The defendant says this risk did not arise if Mr Pollard and Mr Rowbotham were not in the bucket because the line of sight rule would have prevented it. This rule prevented the loader operator from operating the loader unless he had clear line of sight. That rule does not prevent the existence of risks. It is a rule that controls risk. It is a universal rule and yet accidents continue to happen confirming that risks exist. The rule only works if it is enforced. (2) Was the risk foreseen or foreseeable? 1. This is not a statutory question, but the answer to it is relevant to one and that is whether there was anything reasonably practicable the defendant could have done in its discharge of its health and safety duty. The question, accordingly, is important. 2. The circumstances of this case do not require elaborate analysis. The evidence overwhelmingly establishes that the risks were foreseen or foreseeable. 3. That evidence is as follows. * The method of hanging a known weight from a flask to test calibration of a load cell allowed for the possibility of work being done from the bucket of a loader when the bucket was in the shaft. * The defendant acknowledged in submissions the foreseeability of risk in working from a bucket at height [295] . * The defendant's underground inspections from January 2012 to May 2012 were not simply to see if the job could be done. They were also to see if it could be done safely. It could be done safely. It could also be done by working in the shaft and that would be in the loader bucket. * An expression of the defendant's knowledge of the possibility of working from the bucket in the shaft came with Mr Dally's observation to Messrs Tavian, Gauci, Harris and Ridley that he wanted the job done from the 26 sub level and the platform above, and not from the bucket. He also expected that to be expressed in the JSA [296] . He was not challenged or contradicted on that evidence. That observation of Mr Dally makes no sense unless there was a possibility, and Mr Dally was aware of it, that work could be done from the bucket in the shaft. * Mr Slade acknowledged the possibility that the rule against working in the bucket of a loader could be broken in circumstances that have resemblance to the circumstances of this case [297] . 1. These matters establish that the defendant knew that work could be done in the shaft from the bucket of the loader and, accordingly, knew of the risk of death or serious injury in fall from height. 2. There is then the risk that existed if the weight basket should move. Risk of injury was foreseeable. In the nature of this risk the facts that made it a risk are facts that made it foreseeable. By reason of the low coefficient of friction, a jolt or mishap could cause the basket to move. That was foreseeable and if it occurred, crush injury could occur. 3. There is also the risk of injury in the movement of the loader. That was a foreseeable risk, hence the purpose of rules to avoid risk such as the line-of-sight rule and the enforcement of exclusion zones. 4. I am satisfied beyond reasonable doubt that the defendant foresaw or should have foreseen the risks. (3) What measures did the defendant take to address the risks? 1. The defendant's response to the risk is to be seen on a background of systems in place at the time. It is conveniently dealt with in considering five subject matters. They are: 1. information to, and training and experience of, the workforce, including Mr Pollard and Mr Rowbotham; 2. a ban on the use of a bucket of a loader as a work platform; 3. the defendant's risk analysis process; 4. the JSA; 5. the 3TC system. (3)(a) information to, and training and experience of, the workforce including Mr Pollard and Mr Rowbotham 1. The defendant had systems in place that were directed to safety. They included the following documents: * A safe work practice – SWP U606 REMOVE AND REPLACE LOADING FLASK AT 25 LEVEL [298] ; * Conduct Local Risk Assessment MNMC205A [299] ; * Perilya Broken Hill Procedure for Job Safety Analysis (JSA) [300] ; * MNMG237A Work Safely at Heights [301] ; * Perilya Limited HSE Management System System Overview [302] ; * Underground Operation Skills Manual [303] ; * Mine Services Safety Awareness Package [304] ; * Perilya Broken Hill Lease Induction Manual [305] ; * RULES TO LIVE BY [306] ; * HSE Guideline 7 Education, Training and Competency Assessment [307] ; * HSE Guideline 2 HSE Risk Management [308] ; * a poster which may be described as a cartoon of a worker tangled in an air hose on the bonnet of a loader [309] . 1. The content of these documents provides part of the background against which the defendant took the steps it did in this case to address the risk. 2. The defendant draws on a number of matters in these documents as important in this case. 3. One thing it draws on is that the documents set out permissible ways in which tasks may be carried out and permissible equipment that may be used. 4. The defendant draws on the documentation providing, when working at heights, the appropriate fall arrest equipment to be used and also the appropriate equipment in the form of elevated work platform, scissor lift or safety cage [310] . It also provides that the correct tools and equipment "must" be used and adds "Do not improvise" [311] . This is part of the material on which the defendant relies to demonstrate that there was a ban on the use of a bucket of a loader as a work platform. 5. The defendant submitted that many of the documents identify risk assessment as a key deterrent to be undertaken on every occasion work is undertaken [312] . The reference provided by the defendant [313] does not support a proposition as wide as that, but it does set out the risk assessment to be undertaken when working at heights. I deal with risk assessment, JSA and 3TC in more detail later. 6. The next thing the defendant draws on from these documents is that they provide that if any changes occur during work operations, work is to be stopped, the supervisor is to be notified immediately and JSA, if done, is to be reviewed [314] . 7. The defendant also draws on the documents providing that when conducting a JSA, it is not only the personal safety of the person conducting the JSA, but also that of workmates that must be considered [315] . 8. The defendant also draws on the "RULES TO LIVE BY" [316] . These were sometimes referred to in the evidence as the golden rules. These rules which had been in existence at the mine were reviewed and updated in September 2007 [317] . The review process was undertaken by a committee of 11 persons and in formulating new rules the principle that employees are much more likely to follow rules that are short, simple, clear and understandable was utilised. The rules were widely promulgated to the workforce. This was done through meetings, putting them up on noticeboards and by the erection of a large sign at the entry of the mine on which they were exposed. 9. The Rules to Live By were additionally promulgated as part of the booklet entitled "Our Journey Towards Safe, Reliable Production and Zero Harm". [318] When this booklet was distributed is not clear. Mr Olds was cross-examined to the effect that he signed as having received it the day before the incident [319] . The document founding that suggestion was apparently a document of Mr Dally [320] . Mr Olds's signature appears on the 3rd line beside the date 7/6/12. If that document does what the defendant says it does, it also establishes that Mr Pollard had not received the booklet before 14 June 2012. That date appears on the document as the date on which it was scanned. Mr Pollard's name is 2nd last on the page with no signature or date beside his name. The page of the document containing Mr Rowbotham's name is not in evidence and I do not accept that he had received it before the incident. His evidence on this was that he could not remember when he received it. He was simply asked to accept that it was on 7 June 2012 [321] . No attempt was made to prove that. 10. I accept that the booklet had been published before the incident, but it had not been universally distributed before the incident. Of the three men who undertook the task, Mr Olds was the only one to have received it before the incident. 11. There were eight rules in the Rules to Live By. The first four commence with the word "NEVER". The last four commence with the word "ALWAYS". 12. The fourth rule is "NEVER work or travel under unsecured ground or suspended loads". The flasks under which the task was to be carried out were suspended loads [322] . Working from a bucket under the flask would be working under a suspended load and also working under unsupported ground [323] . If there is to be work in the shaft, there first has to be a full shaft inspection [324] . Work in that process is only conducted from the tops, a work platform with overhead protection [325] . No shaft inspection had been done on the date of the incident. Mr Pollard said nobody should have been working in the shaft [326] . 13. The defendant draws on a message in the documentation: "If you can't do the job safely, don't do it." 1. This message appears in the RULES TO LIVE BY [327] and on the 3TC form [328] . Stopping work for safety reasons was not only acceptable and required practice, but was also applauded [329] . 2. The cartoon poster was displayed on noticeboards and in meeting rooms [330] , in the Marble Arch [331] and the theatrette [332] . It was in the start-up room next door to Mr Harris [333] . There was a safety message in it, but it was not entirely clear. It certainly provided a message against using the bonnet of a loader as a work platform. This was because bonnets are slippery. A further message was to use staging, scaffold or Furukawa basket to work at heights. It did not mention the bucket. 3. Mr Pollard, Mr Rowbotham and Mr Olds were aware of the relevant content of this documentation. They were aware that a breach of safety or safety rules was unacceptable. They were aware that this was a disciplinary matter. They were aware that breach could result in dismissal. 4. The defendant picked Mr Pollard to do the job because of his competence, experience and attitude to safety. 5. Mr Pollard had worked in the mine since the defendant took it over in 2002 and prior to that for Pasminco. During that time, a number of persons had the opportunity to work with him and observe work that he performed. All persons who were in a position to form a view of Mr Pollard as a worker considered him to be a very good rigger [334] skilled as well as a very safe and reliable worker [335] . 6. A number of witnesses identified that if they had a rigging related problem it was Mr Pollard to whom they would turn for advice and assistance. [336] He was a person who would provide an explanation of the safe way to perform rigging work. 7. Mr Pollard was the most senior rigger [337] . He was the person approached if there was a rigging question. He was the one approached if assistance was needed to work out a safe work methodology involving rigging. He was vastly knowledgeable, a safe and reliable worker and stuck to safety rules. He was one of the "X-Men". They were brought in to do complicated rigging jobs. [338] He stopped jobs if there was a safety issue. He participated in risk assessment processes [339] . In respect of the project, he was described as the "subject matter expert" [340] . 8. The defendant relies on Messrs Pollard and Rowbotham having had significant experience and training working in the mine, in the underground and specifically around and in the shaft. The records relied on here [341] are extensive, but many have little or no relevance to the job process in this case. 9. I summarise some important aspects of the training relied on. 10. Mr Pollard 13 June 2002 Underground induction [342] 19 December 2007 Work Safety at Heights Course and Certificate [343] 24 February 2009 Trained in Southern Cross Shaft Inspection [344] 26 October 2010 Assessed as Competent in Service Vehicles Safety Awareness [345] The significance of this document is that it contains references to "basket" being a container in which workers were permitted to work at height. [346] Assessed as Competent in Mine Services Safety Awareness Assessment [347] This document also refers to "basket". [348] 25 January 2011 Application for Recognition of Prior Learning (RPL) in Metalliferous Mining Operations [349] Units included: Work Safely; Conduct Local Risk Assessment; Work Safely at Heights. 31 January 2011 Certificate in Metalliferous Mining Operations (Underground) [350] This certificate was based upon RPL without any additional training [351] . 28 February 2011 Trained in the JSA process [352] Undated Take Time Take Charge [353] 1. Mr Rowbotham 24 June 2005 Certificate in Perform Rigging - Basic [354] 20 December 2007 Work Safely at Heights Certificate [355] 2 November 2010 Assessed as competent in Safety Vehicles Awareness Assessment [356] This document refers to "basket". [357] 5 March 2011 Trained in JSA process [358] 17 November 2011 Self Assessment of Work Safely [359] The Activity Book includes a response to a question by Mr Rowbotham as follows: It is the responsibility of each person to ensure that they use the appropriate PPE. [360] Assessed as competent. [361] Self Assessment in Conduct Local Risk Assessment [362] Assessed as competent. [363] Undated Underground Induction [364] (3)(b) a ban on the use of a bucket of a loader as a work platform 1. The defendant says, and the evidence supports, that there was an established policy prohibiting use of the bucket of a loader as a working platform. 2. There was a practice in the mining industry until the late 1990s of working from a bucket. That was prohibited by Pasminco, the owner of the mine before the defendant, in 1993 [365] . 3. Pasminco started a safety culture in 1993 [366] prohibiting workers working out of a loader bucket [367] . Working from a bucket was not allowed in the last decade of Pasminco's ownership up to 2002 [368] . 4. The defendant had a policy that work was not to be undertaken using the bucket of a loader as a work platform. There was no evidence that this policy was ever taught at inductions [369] . Mr Olds underwent an induction before he started at Perilya. He could not recall any instruction banning working from a bucket [370] . Mr Rowbotham learned of the ban from other workers, not from supervisors [371] . I am satisfied it was not taught at inductions. Though not written, it was, however, well known and substantially adhered to in practice. 5. Working from a bucket was considered a breach of safety rule, a disciplinary matter and subjected a worker to a first and final warning [372] . The disciplinary action could include dismissal [373] . The message that breach of safety rules could lead to disciplinary action was reiterated a couple of times [374] . 6. There was a submission to the effect that the defendant condoned breach of the practice if it suited it. That submission is not well supported by the evidence. 7. Mr Pollard said he had seen people working out of the buckets of loaders [375] . On 16 July 2012, he had told Department inspectors the contrary [376] . I was impressed by Mr Pollard and the evidence he gave in relation to this. I accept it. That means what he told the inspectors was not correct. I cannot have a definitive explanation for that, but I thought he was truthful in giving his evidence. The explanation may lie in part on the fact that, as he said, he had had more time to think about it. It may also lie in part on the fact that at the time he was interviewed by the inspectors, it was less than 7 weeks after the incident in which his leg had been traumatically amputated. Despite having people with him at that interview, the shock and trauma must have still been recent, painful and profound. 8. Mr Pollard's evidence on this, however, does not fix the defendant with the knowledge that it occurred. Nor is there any detail from which it can be drawn that the defendant ought to have known that Mr Pollard or anyone else had used the bucket of a loader as a working platform. 9. Evidence from Mr Olds of specific instances of a breach of the practice was countered in each instance with evidence of denial, which I accept, from witnesses [377] . Even if Mr Olds had "his wires crossed" [378] as Mr Guthrie suggested, the circumstances about which Mr Olds spoke were not occasions of which the defendant had knowledge or could be expected to have knowledge. 10. The policy prohibiting the use of a bucket was well known to Mr Pollard and to Mr Rowbotham. They knew it was a safety matter. They knew that breach could have disciplinary consequences. They knew the disciplinary consequences could include dismissal. 11. Evidence the defendant relied on to reinforce Mr Pollard's knowledge of the ban and its consequences included: * he had been disciplined for not wearing a seatbelt [379] ; * the defendant had a specially designed man-work-basket for working at heights. It was designed to be put on an IT, forklift or telehandler [380] . Mr Pollard was aware of this. 1. Mr Olds's knowledge of the ban and consequences for breach was different to that of Mr Pollard and Mr Rowbotham. He gave the following evidence [381] : Q. If you observed anybody who you were supervising, the loader operator that you were supervising, using their bucket as a work platform for people to stand in and perform their work, you would have had to check that that was actually something they had permission for, wouldn't you? A. I would have checked that it was, yeah. Q. Because if they didn't have permission for it was a breach of safety rules, wasn't it? A. Well, that's the thing, it wasn't an actual safety rule until after the incident, now it is - clear writing, anyone that does a loader ticket now you will sign paperwork saying you do not allow anyone in the bucket. 1. There are several things to observe about that. The questions contain premises, if not express, at least implied. The premises are that in the circumstances postulated Mr Olds would have to ask if permission had been obtained to use the bucket as a work platform. Another is that permission could be obtained. Those premises must be in the question otherwise there would be no point in suggesting to Mr Olds that he would have to ask about that. If permission could be obtained, it allows that there were circumstances in which the bucket of a loader could or might be used as a work platform. The questions are at least consistent with that being Mr Olds's understanding. 2. Despite the policy prohibiting the use of the bucket as a work platform, Mr Dally specifically contemplated the possibility of work being done from the bucket of the loader. He dealt with the possibility by telling Messrs Harris, Tavian, Gauci and Ridley [382] that the workers were not to work from the bucket of the loader. 3. There are three things to note from what Mr Dally told these men. Mr Dally told them he did not want the workers working in the bucket of the loader. He expected that information to be passed on to them. He also expected that matter to be recorded in the JSA which was used in this case. 4. This conversation between Mr Dally and these gentlemen occurred after Mr Adams had become involved with providing the chains and, accordingly, after Mr Pollard had been selected to lead the task [383] . 5. Despite the ban on the use of the bucket as a work platform, Mr Slade also contemplated the possibility of its use in circumstances similar to those in this case [384] . (3)(c) the defendant's risk analysis process 1. In summary form, the risk analysis covered the following. 1. The defendant's personnel had inspected the work site on several occasions to examine the feasibility of the task and whether it could be done safely. 2. The defendant's personnel went underground and inspected the site around 9 January 2012, on 18 January 2012, later in January 2012, 23 May 2012, 25 May 2012 and 2 June 2012. Safety was specifically considered on the inspections of 9 January 2012, 18 January 2012 and 23 May 2012. The evidence in relation to those visits is covered earlier in these reasons - [49] to [57], [73] to [78], [82] to [83], [97] to [98]. 3. At the inspections, they took photographs, they marked up photographs with text, they prepared a handwritten diagram and sketch, they took measurements. 4. There were different meetings of personnel and/or outsiders involved in the job. The evidence in relation to these meetings is covered earlier in these reasons. These meetings occurred at least on 23 May 2012, 30 May 2012, 1 June 2012, 5 June 2012, 7 June 2012 and 8 June 2012. 5. The defendant's personnel contemplated that the job was to be done from the 26 sub level and the platform above it. The defendant also relies on the fact that the task could have been undertaken entirely from the 26 sub level and the platform above it without any need to get into the bucket of the loader. 6. The task was a rigging task. 7. The precise mechanism for the carrying out of the task was left to the rigger and, for this purpose, the defendant chose its most experienced and able rigger, Mr Pollard. 8. The defendant required Mr Pollard to prepare a JSA for the task. 9. Mr Pollard prepared a JSA which gave no indication that anybody would be working from the bucket of the loader and was consistent with the task being done from the 26 sub level and from the platform above. 10. Mr Ridley was to come down and inspect the job some time after it had commenced. 11. The task was to be done on a maintenance day when the whole of the workings of the underground operations would be closed and work would not be permitted in the shaft or under suspended weights. (3)(d) the JSA 1. Job safety analysis was part of the defendant's risk analysis process. 2. The defendant considered a JSA to be the appropriate process to adopt in this instance. It took the view that this was more appropriate than a formal risk assessment as the task was a simple or one-off task [385] . 3. Nothing was done about preparing the JSA until Mr Ridley requested Mr Pollard to prepare the document on the morning of the incident. I have dealt earlier with evidence concerning the preparation of the document. I also deal later with what I consider to be the inadequacies in the process of preparing the JSA in this case and the inadequacies of the document. (3)(e) the 3TC system 1. The 3TC system was part of the defendant's safety system. 2. There was a 3TC booklet that was to be carried by every worker [386] . 3. The 3TC booklet listed environmental and safety hazards [387] . The evidence was that it was to be filled in before starting a job. The operator kept it and the supervisor might come and check it on the job [388] . Supervisors went around and inspected jobs and checked to see that the 3TCs had been filled in [389] . The job was stopped if the 3TC was not filled in [390] . This could be followed by disciplinary action. That evidence was more the ideal than the reality. For reasons given later, the system was defective. (4) (a) Were the measures taken by the defendant adequate; (b) if not, did the defendant's failure cause Mr Pollard and/or Mr Rowbotham to be exposed to the risk? 1. It is convenient to consider these two questions together. 2. In view of the fact that the workers used the bucket of the loader contrary to the understood policy prohibiting it, it is appropriate to look at authorities involving cases of careless or disobedient workers. 3. In WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited [391] (Maine), a worker, Mr Ardilley, was electrocuted when he was replacing a light globe. He was above a false ceiling area and came into contact with the electrical source through exposed terminals. The lamp holders used in that case were ceramic screw-in with the electrical connections exposed. When the electrical current was switched on, any person holding the lamp holder was at risk of coming into contact with the exposed terminals and live current. The use of the lamp holders was recognised as being dangerous. Safer fittings had been considered and rejected on the basis of cost or time. To meet the danger, steps were taken to restrict access to the area and Mr Ardilley had been told half an hour before the accident to switch off the current. 4. In the course of his reasons, Bauer J said [392] , Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 1. Maine was a case under the Occupational Health and Safety Act 1983 (OHS Act). There is a difference in the legislation. Under the OHS Act, the duty to ensure health and safety was unconditional. It was not conditioned by reasonable practicability. There was a defence available if it was not reasonably practicable to comply with the duty. 2. WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) [393] was another case under the OHS Act. Two workers were burned when they opened the lid of a pressure cooker. It was cooker number 4 in a line of industrial cookers that produced breakfast cereals. Cooker number 4 and cooker number 2 in the line had both produced a "bad cook" and both had to be emptied. Cooker 2 was emptied successfully. The workers checked the gauges on that cooker before discharging it, but they did not do so on cooker number 4. Had they done so, as was required, they would have seen its contents were under considerable pressure. They were experienced operators working unsupervised. 3. The defendant in Kellogg submitted that the workers "acted in a manner which was unpredictable and against which the defendant could not have been expected to have taken precautions". The submission was rejected. 4. In the course of his reasons, Walton J said, I find that the defendant should have ensured the operation of a system of work which ensured that the operators checked the pressure gauges by the cooker, the pressure gauge screen on the computer and the trend screen on the computer prior to loosening a secured lid on any cooker. Had the operators in question inspected the gauges and the computer prior to the accident they would have realised that the vessel was under pressure and would not have attempted to move the lid. Had they looked at the trend screen, they would have also, in my view, realised that the graph showed a steam leak, or, if not, they would have realised from the shape of the graph that something was amiss. … the defendant was guilty of a failure to ensure that the operators checked the pressure gauges, including the trend screen, before attempting to remove the lid. … operators were self-directing and operated without supervision. It is understandable, therefore, that in the absence of a specific procedure and instructions given (particularly in relation to bad cooks), the operators may attempt to resolve a difficulty with cooker number 4 as part of their ordinary duties. … It is not sufficient to rely upon any general instruction as to the checking of gauges, (which, in any event, did not include the checking of a trend screen) given years before the event to bring home to the operators the need for rigorous checking of pressures before opening lids, particularly in relation to bad cooks, where an expectation of the absence of pressure may exist. Had they carried out those checks they would have seen from the gauges and the computer screens that the cooker was pressurised. They would not, I believe, have then attempted to release the lid, but would have sought other means of reducing the pressure within the cooker. The accident would not have occurred. I hold, therefore that the risk to safety was caused by the defendant's breaches of duty I have identified. … In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. 1. Walton J rejected the suggestion that foreseeability had any relevance in determining whether an offence had been committed. It did, however, have relevance on the question as to whether the defence had been established. 2. The change in the current legislation is to place the issue of "reasonably practicable" as an element of the offence instead of its being a defence. The onus of establishing "reasonably practicable" is on the prosecution. In that way, the foreseeability question becomes relevant in considering whether an offence has been committed. The Work Health and Safety Act 2011 (NSW) has effected that change. It has not "gone further" as the defendant's submission would have it, and changed the law in relation to the duty owed by an employer to the worker who is careless, inattentive, inadvertent or even disobedient. That law is too well entrenched to be changed, except by the clearest of legislative expression. 3. In Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) [394] , some road widening was taking place at Burradoo. An appropriate system for vehicles to enter and exit the worksite was in place. They entered and existed with the flow of traffic. This system was altered on the day of the accident by Mr Holzigal, a subcontractor of the defendant. The system was to be that vehicles would be directed to vary the traffic flow using recognised symbols. A truck exiting the work site struck the defendant's leading hand, Mr Ingram, fatally injuring him. The truck had a bug deflector on its bonnet which created a large blind spot. It is not clear what Mr Ingram was doing when struck, but he was probably attending to a witch's hat. 4. The Court, comprising Wright, Walton and Hungerford JJ, stated: 67 … the appellant contended the risk to safety resulted from a casual act of negligence by Mr Ingram and Mr Holzigal and relied on the following passage from the judgment of the Full Bench of the former Commission in Court Session in State Rail Authority v Dawson (at 126): … the facts well establish, on the probabilities, that the defendant laid down a safe and proper practice, and the evidence did not suggest that the defendant had failed to use due diligence to see that the practice was observed. It seems to us to be established that the statutory defences available under s53 are both made out in the situation of a casual failure by a supervisor to perform the duties and functions laid down by the employer. Similar sentiments were expressed in relation to the failure of an employee to follow an established safe system of work in Inspector Davies v Prospect Electricity. 68 In WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd (No 1) at 259, it was stated that the practicability of adopting measures directed at addressing a particular detriment to safety required a balancing of the magnitude of the risk and the gravity of the harm likely to result with the sacrifice involved in the measures necessary for averting the risk. It was, furthermore, observed that it would not generally be practicable to take measures to guard against a detriment to safety that was not reasonably foreseeable. This approach was adopted by the Full Bench of this Court in Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Insp. Charles) (2000) 102 IR 57 at 82-83. It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee. 1. Genner bears a number of similarities to this case. Many of the submissions were almost identical to those put forward by the defendant. The submissions included: * the defendant had an established policy for vehicle movements; * Mr Ingram continually received on-the-job training; * Mr Ingram was a competent employee. He was a very good supervisor; * the defendant's system for vehicle movements was safe; * the system of work had been maintained to a vigorous standard; * Mr Ingram was acting as supervisor of the site on the day of the incident; * the defendant was entitled to rely on Mr Ingram to comply with established procedures and to expect he would properly instruct the other workers on site; * Mr Holzigal knew of the alternative safe procedure, but made a decision to disregard it. The accident was therefore a result of his failure to follow the alternative procedures. 1. The submissions were not accepted by Kavanagh J or on appeal. The members of the Full Court said, 57 The appellant pointed to the evidence of Mr Genner to the effect that he had provided regular "on-the-job" training and instruction to Mr Ingram over many years. The evidence of Mr Genner was that this training encompassed issues of safety, including methods of directing vehicles entering and leaving worksites. Inspector Chadwick of the WorkCover Authority and Mr Johnson, an expert called by the appellant in the proceedings at first instance, agreed that "on-the-job" training can be a very effective method of training workers. However, whilst such training may, with respect to particular work, be sufficient to ensure a safe workplace, there will be many cases in which more detailed, comprehensive or systematic training and instruction will be required: see, for example, WorkCover Authority of New South Wales (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 at [24]-[25] and WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 at [71]. 58 The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education). 1. WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [395] , concerned a case where a worker's arms were caught in "Rippa Chippa" machine. The plurality (Walton and Goland JJ) made the following observations, 45 The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable… 1. Then citing from Riley v Australian Grader Hire Pty Ltd [396] , [397] Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. … [398] The employer must also guard against acts of inadvertence to the fullest extent practicable: Inspector Ankucic v Naomi Cotton Co-operative Ltd(unreported, 97/2251, 14 July 1998, Hill J). We note in this respect the observations of the Full Bench in Australian Grader Hire [at 16] as follows: Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: "In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8)." 1. Scotting DCJ summarised the law in Safe Work NSW v Wollongong Glass P/L [399] : [400] A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent… If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account… It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable. [401] The unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against… [402] In some cases, it will not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. There are limits to the degree of instruction which can be expected to be provided to an experienced employee… [403] Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety… 1. That was a case under the current legislation. In that case, "the deceased was under the influence of cannabis to the extent that … the deceased's perceptions, judgement, decision making processes, vigilance, appreciation of dangers, concentration and reaction times were significantly impaired" [404] . 2. I consider in the circumstances of this case that the defendant's health and safety duty extended to both Mr Pollard and Mr Rowbotham, notwithstanding their use of the bucket of the loader as a work platform. I do so for a number of reasons. 1. I do not see any scope for the application of a principle in this case that would limit the defendant's liability where the very risk that is in issue is one that was foreseen by Mr Dally and by Mr Slade, where Mr Dally told Messrs Tavian, Harris, Ridley and Gauci that he did not want the workers working the bucket of the loader and where he expected that to be passed on to the workers, and where he expected that to be in the JSA. 2. Mr Dally and Mr Slade both expected the JSA to cover the risk of the use of the bucket and/or falling from height and it did not [405] . 3. The workers were not informed, contrary to Mr Dally's expectation, that they were not to work from the bucket of the loader. 4. The JSA notwithstanding, there was a total absence of written procedure and instructions directed to the risk of working at height. 5. There was an "absence of a specific procedure and instructions" (written or oral) (Kellogg) at least in respect of the shortening of chains. 6. The defendant relies not only on its policy prohibiting the use of the bucket, but also its overall safety system including the Rules to Live By, the JSA system, the 3TC system. For reasons mentioned later, the JSA and 3TC systems were deficient and faulty and the Rules to Live By cannot negate the defendant's health and safety duty in this instance nor be a sufficient discharge of its duty. 7. The defendant was required to ensure that procedures and instructions were "actively and positively complied with by employees" (Kellogg). It did not do this. Procedures and instructions for this job were incomplete and Mr Ridley directed Mr Pollard to commence the job in his absence. 8. The hanging of weights from the bottom of a flask was a first time job for the defendant. It required an appropriate risk assessment to be carried out. The JSA, though an appropriate process, was inadequate. This was no doubt partly a result of Mr Pollard not being engaged in the planning process and being required to prepare it without the benefit of visiting the site, a benefit each of Messrs Dally, Tavian, Harris and Ridley had on several occasions. 9. The defendant's personnel gave evidence that it was a simple job [406] . The so-called simplicity of the task is belied by a number of matters: * it was considered necessary to get in one of the X-Men to do it; * not all steps had been covered in their totality in the pre-planning exercises; * there were many planning inspections by the defendant's personnel; * some steps in the process remained for Mr Pollard's judgment. He was to "fine tune" the shortening of the chains and any other matters that had not occurred to the defendant [407] . This fine tuning was not something he was told to do, but something he was to work out for himself [408] ; * Mr Kelly was swapped out for the more experienced Mr Rowbotham; * if it was simple then there should have been no need for Mr Ridley to come down to supervise; * by the meeting of 5 June 2012, there were no measurements of the height of the gate across the shaft at 26 sub level or the available space above the gate or beneath the first obstruction through which the loader would have to pass; * Mr Dally had a "great knowledge" of the site by January 2012 [409] . He still went underground for an inspection on 9 January 2012. Mr Pollard and Mr Rowbotham had no inspection at all; * External advice for the chains needed to be sought from Bobos. This was necessary as the defendant did not know even with the benefit of Mr Pollard as the subject matter expert what chains were needed. The defendant had, in fact, suggested inadequate chains [410] . 1. Whilst Mr Pollard and Mr Rowbotham knew of the ban on working from the bucket of a loader and of potential consequences for breach, it was not something that was specifically taught to them by the defendant or in any way formalised. 2. The fact that this was a first time job meant that there was no work system related to that job, other than general work practices, that the defendant had in place. Mr Pollard was left to his own devices. It can hardly lie with the defendant to complain that when Mr Pollard realised he would be working from the bucket he should have stopped the job and changed the JSA when the defendant should have ensured from the outset that the JSA contained a proscription against that. 3. Mr Ridley sent Mr Pollard to the job and told him to start it in his absence in circumstances where the JSA process was deficient and the JSA document was totally inadequate and Mr Ridley should have known both those things. 1. The next question to consider on the issue of whether the steps taken by the defendant were adequate is whether it was necessary for the defendant to eliminate or minimise the risks. 2. The defendant had a fairly elaborate submission on this point which may be distilled to some simple propositions. They are: 1. s 17(b) of the Act provides that if it is not reasonably practicable to eliminate risks, they are to be minimised; 2. in this case, it was reasonably practicable to eliminate risks; 3. therefore, there was no requirement to minimise. 1. There are several problems with this argument. It is the case that it was reasonably practicable to eliminate the risks in this case. That, however, depended on the work being done entirely from the 26 sub level and the platform above. The argument can have no merit unless all the risks and hazards had been identified, controlled and management thereof communicated. If the defendant was deficient in its processes in this regard, it cannot rely on the argument that says "We could have reasonably practicably eliminated the risks. We didn't do so. The fact is, however, the risks could have been eliminated by the process we failed to set up properly. Because the risks could have been eliminated, we were under no obligation to take steps to minimise them and we cannot be charged with failing to minimise." 2. This is reading into the section a duty on the person conducting a business or undertaking (PCBU) to minimise risk, but only if it is not reasonably practicable to eliminate it. Indeed "only" was part of the defendant's submission [411] . In other words, if a risk could reasonably practicably be eliminated and a PCBU did nothing about that, the argument must result in the conclusion that it would have no duty to do anything to minimise the risk. 3. An example where this may come into play is the failure to have a written policy banning the use of a bucket as a work platform. That might not of itself eliminate risk but it would be a powerful weapon minimising risk. It cannot lie with the defendant to say it cannot be guilty of an offence in that situation because the step available to it would have made its workforce safer, but not completely safe. 4. Another problem with the defendant's argument is that it seeks to overturn long-established law in the health and safety field. This result has not been achieved by shifting the onus of "reasonably practicable" from the defendant to the prosecutor, by the use of the word "and" in s 17, by any other part of s 17 or by any other part of the Act. 5. It suffices for present purposes to turn to Bulga Underground Operations Pty Limited v Nash [412] . This argument was raised in Bulga which was decided under the Occupational Health and Safety Act 2000 (2000 Act). 6. In Bulga, in the joint judgment, the Court said, 106 As is apparent, the appellant placed particular emphasis on the fact that the duty imposed by s 8 of the Act was to ensure the health, safety and welfare of employees and that the obligation could not be satisfied by managing or minimising the risk. 107 There is no doubt that this proposition is correct … 108 However, it by no means follows that a failure to take steps which would lessen or minimise the risk, without entirely eliminating it, could not constitute a breach of that obligation. Such steps may be necessary but not sufficient to ensure safety or may at least tend to manage the risk. It is difficult to see why the failure to take such steps, albeit insufficient to ensure safety, could not constitute a breach of s 8(1) of the Act. 109 In our view, a failure to take steps which are necessary but insufficient to ensure safety, or which limit the risk to the employee without entirely eliminating it, can constitute a breach of s 8(1). Construction of the section, as with any statutory provision, must begin with a consideration of the text itself. However, the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision… 110 In the present case, the legislation is silent as to what can constitute a breach of s 8(1). Having regard to the objects of the Act contained in s 3, it would be surprising if liability could be avoided by reason of the fact that it could only be established that a particular method would merely manage risk rather than eliminate it… 117 Further we do not think that s 7A assists the appellant. As we pointed out above at [35], the effect of s 7A was to place the onus on the prosecutor to prove that a measure was reasonably practicable as distinct from making this factor a defence. This does not seem to us to be of assistance in determining whether a contravention occurred. 1. The objects sections of the Act and the 2000 Act are expressed differently, but not in a way that diminishes what the Court of Criminal Appeal said at [110]. The incident in Bulga occurred on 23 April 2000. Section 7A of the 2000 Act is slightly different in its wording to s 17 of the Act, but to no material different effect. By reason of the dates, s 7A was not operative at the time of the incident in Bulga. What was said at [117] is therefore to be seen as obiter. There is no reason, however, why I should not adopt it and I do. 2. The result of this is that I do not accept the defendant's submission that it cannot be in breach of its duty on the basis that it failed to take steps to minimise risk. 3. In considering now whether the measures taken by the defendant were adequate, it is necessary to examine that in relation to the particulars of breach alleged against the defendant. I propose to determine this case on the method adopted by the defendant [413] . I do not propose to address the four alternate measures for reasons which I explain later [414] . 4. I proceed now to examine each of the particulars of breach alleged against the defendant. Particular 12(a) 1. This particular alleges the defendant should have undertaken: … a risk assessment of the hazards and risks of injury arising from the option selected for the adjustment of the Load Cells, the measures to be implemented to eliminate or minimise the hazards and risks the person responsible for the development and implementation of safe work procedures for adjustment of the Load Cells; (Risk Assessment) 1. In part, this particular is incomprehensible. I take it to mean that the defendant was allegedly in breach of its duty in not undertaking a risk assessment of the hazards and risks and an assessment of the measures to be implemented to eliminate or minimise them. 2. The first question that arises is whether a JSA was the appropriate process or whether a risk assessment should have been undertaken. 3. The prosecutor submitted that a formal risk assessment was required by the defendant's Management System [415] . That is not so. The defendant's HSE Guideline 2 HSE Risk Management deals with this. It contains a section headed "Choosing the right risk assessment process". There is nothing in that section that defines what process should have been used in this case. There is then a diagrammatic figure entitled, "Selecting the Appropriate Risk Management Tool". It is a step-by-step diagram. There is nothing in that to help determine whether a JSA or a Risk Assessment was appropriate in this case [416] . 4. The defendant's personnel gave evidence that they considered a JSA to be the appropriate process in this case. 5. Mr Cockbain is a consulting engineer. He has expertise in occupational health and safety and in risk management. Mr Cockbain considered the requirement for a risk assessment process and for documented safe work procedures. 6. Mr Cockbain stated that it is important to understand the difference between a risk assessment and a JSA. He stated a risk assessment is used to determine risk management priorities. It seeks to identify which risks are most in need of reduction and the options for achieving that and which risks need ongoing management and the nature of that. 7. Mr Cockbain said a JSA is used to determine risk control measures for specific tasks not complex in nature [417] . There was evidence that this job was not a complex one [418] . For reasons given [419] , I do not accept that. 8. Mr Cockbain's experience was that formal risk assessments are undertaken for all "non-routine tasks" in "abnormal environments" [420] . This was not an abnormal environment as assessed by Mr Cockbain. He envisaged work from the loader bucket in the void of a live shaft [421] . Work from the loader bucket in the shaft was the fact but it was not contemplated that the shaft would be live. On Mr Cockbain's Fig. 59, this would be a non-routine task in a normal environment and developing a JSA would be the appropriate process [422] . 9. The result of this is that the undertaking of a risk assessment was not required. As that was not required then an assessment of the measures to be implemented to eliminate or minimise steps arising from that assessment does not arise. Accordingly, this particular has not been made out. Particular 12(b) 1. This particular alleges the defendant should have implemented: … the development, implementation and enforcement of a safe work procedure for the Work arising from the Risk Assessment; (Safe Work Procedure) 1. As the case for undertaking a Risk Assessment has not been made out, the prosecution case on this particular must also fail. Particular 12(c) 1. This particular alleges the defendant should have implemented: … the preparation of a "safe work method statement" for the Work as required by regulation 51 of the Mine Health and Safety Regulation 2007; (SWMS) 1. Regulation 51 provided: The operator of a mine must ensure that safe work method statements are prepared for: (a) the construction of a shaft at the mine, or (b) the equipping, stripping, repair or maintenance of a shaft at the mine. 1. The task in this case did not involve construction of a shaft or equipping, stripping, repair or maintenance of a shaft. 2. The prosecutor, in submissions in reply, submits that the need for a SWMS is not dependent on Reg. 51, but on the defendant's existing HSE Management systems. That is not the way this has been particularised and accordingly the prosecutor is not entitled to try to make that case. 3. The prosecution in respect of this particular must fail. Particular 12(d) 1. This particular alleges the defendant should have implemented: … the provision of plant and equipment that was suitable and safe for undertaking the Work … 1. This was not pressed by the prosecutor. Particulars 12(e) and 12(g) 1. It is convenient to deal with these particulars together. 2. These particulars allege the defendant should have implemented the following measures: (e) the provision of fall arrest equipment such as harnesses, lanyards and personal energy absorbers which were fit for the purpose of undertaking the Work; (PPE); (g) ensure that it had and enforced a system for the use of PPE namely: (i) an inspection before being available for use by the Workers; (ii) periodic inspections by competent persons to determine whether it was in safe condition; (iii) the tagging and removal from service of any unsuitable or not fit for purpose PPE; and (iv) the requirement that PPE be stored in the safety store and issued on a shift by shift basis, (collectively the Fall Arrest Systems) 1. The first thing to note about these particulars is that they must be confined to risks as found. They must accordingly be confined to instances where the bucket was not resting on the ground. 2. Some matters are clear on the evidence so much so they do not require analysis. 1. Neither Mr Pollard, nor Mr Rowbotham, should have been in the bucket of the loader. Why they were there is more the issue. 2. Mr Pollard and Mr Rowbotham were using fall restraint systems when they should have been using fall arrest systems. This is because they were in a potential free-fall situation which required a fall arrest system. [423] [424] 3. The PPE they used was examined by experts after the incident and found to be defective. If in that condition before the incident, it should have been removed from service. 4. Use of appropriate fall arrest equipment would have minimised the risk of injury to Mr Pollard and Mr Rowbotham. 1. At this point it is useful to note the defendant's response to this part of the case. The defendant says: 1. as the measures relied on can only minimise the risk to persons working from the bucket of the loader, the prosecution case is misconceived. I reject that submission for reasons given at [278] to [286]; 2. the risks of being struck or crushed are not risks arising from the use of wrong or defective PPE. I accept that submission; 3. the risk of impact or crush injury from slipping or falling cannot arise from the use of wrong or defective PPE. I shall return to this; 4. risks (d) and (e) in [30] hereof have no application because they depend on the workers being in the bucket of the loader. The defendant's submission is as follows: Once it is accepted, that it is unsafe to work from a bucket of a loader it matters not one iota whether or not the Defendants supplied fit for purpose PPE. Whilst it appears to be stating the obvious in a true work health and safety sense, if a task can be done safely (that is by eliminating risks to workers) and it is reasonably practicable to do so, then asserting that a Defendant should take a measure which will mean that the workers will be exposed to the pleaded risks is simply incorrect at law. [425] I shall return to this. 1. Mr Pollard and Mr Rowbotham had been trained in selection of appropriate PPE and in inspection thereof. I shall return to this; 2. the state of the PPE when examined by experts after the incident says nothing about the state of it when used by Mr Pollard and Mr Rowbotham. I shall return to this. 1. As to [313(3)], the problem with that submission is that it puts a gloss on the pleaded risk. The pleaded risk is one of slipping or falling onto the edges of the loader bucket. There was considerable evidence about this, much of it unnecessary and time consuming. It is clear that Mr Pollard and Mr Rowbotham were in a position of potential free-fall. This could have occurred over the side or front of the bucket. Had it done so, they were at risk of impact injury with the edges of the bucket. 2. On this subject, Mr Noble seemed unable or unwilling to accept many propositions of the obvious that were put to him. I reject his evidence to the extent he says that Mr Pollard was not at risk of free fall. 3. Quite apart from calculations undertaken by Mr Noble was another scenario and that is what would happen if the loader or bucket malfunctioned such that the bucket tilted. Mr Pollard and Mr Rowbotham would clearly have been at risk of free-fall. 4. As to [313(4)], this submission cannot stand if, notwithstanding that fault may be attributed to Mr Pollard and Mr Rowbotham for being in the bucket, fault also may be attributed to the defendant. For reasons given and following, such fault existed. The defendant's submission leads to some extraordinary results. Take this case, but with some variations. The defendant, with no planning by planners or supervisors, gives this job to some inexperienced riggers and leaves them entirely to their own devices. Injury occurs as it did here. The prosecutor prosecutes the defendant only for failing to consult with the workers as to the proper way to do the job, a process that would have minimised but not eliminated the risk. The defendant proves to the hilt that if it had taken proper care, it could have eliminated the risk. The submission means that though it did not lift a finger in this scenario to care for the workers' safety, it cannot be convicted for the reason that it could have taken steps to protect them completely. This sort of submission puts a premium on care in framing prosecutions rather than care in the workplace. 5. As to [313(5)], there is a significant problem with this. The defendant knew or should have known that there was an unsafe system in place in the use of PPE. This arose in two ways. One was the practice of workers keeping PPE in their lockers. If the defendant did not know of this practice, it should have. The simplest of enquiries or oversights would have revealed that when external contractors, Bullivants, came to examine PPE they were not examining all the PPE used by workers. One result of this practice was that workers constantly used the same PPE. Another result was that much of the PPE was not subject to regular inspection by outside inspectors. The defendant knew this or should have known. Mr Pollard's and Mr Rowbotham's PPE missed these inspections. Much of the PPE examined soon after the incident was found to be unfit for use and had to be discarded - [191]. The other way was there was a common practice of reeving lanyards. Being a common practice, the defendant should have known about it. It is a practice which reduces the strength of a lanyard by 25% to 60% [426] . It also exposes the textile to damage and wears away the strength and capacity of the lanyard over time [427] . Training the workers in the selection and inspection of PPE was of no use in a situation where it was patent that a proper system for selection and inspection was not being followed. 6. As to [313(6)], it is not in doubt that the condition of the PPE when examined by experts soon after the incident would have resulted in the PPE being removed from service. What was examined was Mr Pollard's harness, part lanyard and Mr Rowbotham's lanyard. Because this position is so clear, it is not necessary to detail the multiple findings of defects in relation to the equipment. Mr Doughty and Mr Bacon, both experts in the inspection and examination of height safety equipment, were both of the opinion that the PPE should have been removed from service before the incident. The defendant's case here is that it was not possible to tell fully to what extent defects in the equipment were a result of the incident itself or the recovery operation in which it was submerged for a time in mud and dirt. In the case of Mr Pollard, he was buried up to his shoulders. In the case of Mr Rowbotham, his equipment was submerged in the process of trying to get to Mr Pollard to rescue him. The defendant also says the defects were compliance defects rather than defects going to the integrity of the PPE. 7. Despite damage caused to the equipment in the trauma of the incident, and its being submerged in mud and dirt, I am satisfied that if it had been properly examined immediately before the incident, it would have been removed from service. 8. There are some matters that unquestionably existed before the incident that would have resulted in the equipment being removed from service: * there was a burn mark in the harness. It was old. It was enough to condemn the harness [428] . There was no cross-examination on the burns or burn mark; * part of Mr Rowbotham's label could not be read [429] . This was an inadequacy that would fail a lanyard [430] ; * Mr Rowbotham's lanyard had no information about the manufacturer, serial number, end service date or model. That would have condemned it [431] . 1. There was evidence of other defects which I am satisfied existed before the incident and would have resulted in the equipment being removed from service, as follows. 1. Rust was one matter. Mr Doughty worked on a ten per cent (10%) loss of parent material as being an unacceptable amount of wear [432] . There are some problems with that, some of which Mr Doughty pointed out, being it can be very hard to measure and it is not possible to see into some workings [433] . Another problem pointed out by Mr Bacon is "Where do you decide where 10% is?" [434] He thought the 10% test was controversial. Mr Doughty had no problem with the 10% test on being shown photos of the D-ring [435] . He thought the rust was excessive and would fail the harness [436] . Mr Doughty was not cross-examined on that. Mr Bacon also thought the state of the D-ring alone was enough to remove the harness from service [437] . 2. As to Mr Pollard's lanyard remnant, Mr Doughty thought the protective cover over the splice had been penetrated and the fibres underneath had been abraded and cut to greater than 10% [438] . 3. Also as to Mr Pollard's lanyard remnant, Mr Doughty noted the rope was a 12 mm diameter rope measured at 14.7mm diameter due to grit and moisture content. The size of the increase was not explained by the incident [439] . 4. Mr Doughty agreed that the fraying/abrasion on the rope of Mr Pollard's lanyard at the spliced eye and the dirt and grit were what one would expect to see [440] . He added there should be a maintenance and cleaning regime and he thought it did not look terribly frequent on this lanyard. He thought the wear and dirt and grit compromised the structural integrity of the lanyard [441] . He seemed to change that view and say it would be enough to remove it from service [442] . Then he added an item is removed from service if it is structurally compromised and that is if it has lost more than 10% of its parent material. Once the fibres start wearing away, the strength of the lanyard starts reducing [443] . He thought the 10% test had been satisfied with the rope in the eye [444] . Mr Doughty also thought the 10% test had been satisfied with the protective cover over the splice [445] . He agreed some of the damage could have been caused in the incident [446] . 5. Mr Bacon found evidence of dirt in between the strands of rope of Mr Pollard's lanyard remnant, though less than on the outside [447] . This weakens the rope. It is enough to condemn the lanyard [448] . 6. Mr Bacon found, as to Mr Pollard's lanyard remnant, the rope showed fraying in two respects. It was where it broke in the incident and also along the rope itself [449] . Mr Bacon agreed in cross-examination that the former was a result of the trauma. He was not asked about the other fraying [450] . He described that as "like little bits of twine", "actually frayed off" [451] . That indicates that "it's rubbed against objects … weakening its structure" [452] . 7. As to Mr Rowbotham's lanyard, Mr Doughty said the rope under the heat shrink was not visible for inspection due to the discolouration of the heat shrink [453] . The internal lay surfaces of the rope showed a small amount of abrasion [454] . The outer surface of the rope was caked with rock fragments [455] . The grit penetrated approximately one third of the thickness of each strand [456] . 8. Mr Bacon said Mr Rowbotham's lanyard had rust on the connectors. That would contribute "to the rest of the rope being damaged" [457] . The operation of the latch would have been very tight and hard to work [458] . The mechanism was seized and needed WD40 to free it up [459] . 9. Also as to Mr Rowbotham's lanyard, Mr Bacon said there were fragments of matter on the inside of the rope. They cut the inside of the strands and reduced the strength of the rope [460] . The lanyard would be expected to have some dirt and mud after his rescue effort [461] , but the dirt and grit present when he examined it would have been there longer than that [462] . The dirt and mud "can be" consistent with the rescue process [463] . The dirt on in the inside could have fallen in in the inspection process [464] , but the amount of mud and dryness "I wouldn't have thought would have happened just after one drop into mud" [465] . 1. There were also unknowns that would have resulted in the equipment being removed from service: 1. Mr Bacon, speaking of Mr Pollard's harness, said corrosion on the "little points" hinders the process of trying to release the buckle [466] . That is enough to fail the harness [467] ; 2. in respect of Mr Pollard's lanyard remnant, as to the compatibility of the connector, surface rust on the connector had not penetrated 10%, but there was an unknown on the inner working parts of the snap hook [468] . Mr Doughty marked the lanyard as failed. The reason was although the surface rust was extensive and had not penetrated more than 10%, the unknown was the rust damage to the non-visible components i.e. springs, pins and underside of the gates [469] ; 3. in respect of Mr Rowbotham's lanyard, Mr Doughty said the splice could not be inspected but given the amount of grit present on other sections of the lanyard it was assumed that inside the heat shrink cover would be similarly affected [470] ; 4. in respect of the snap hook on Mr Rowbotham's lanyard, Mr Doughty commented although the surface rust was extensive it had not penetrated more than 10% of the metal thickness. The unknown was the rust damage to the non-visible components i.e. springs, pin, underside of gates that would remove it from service [471] . 1. Added to that are the following matters. 1. In respect of Mr Pollard's harness, the harness would be expected to be dirty by reason of the incident with Mr Pollard being substantially buried in dirt and mud [472] . Mr Bacon was satisfied, however, that it had defects, other than those caused in the incident and the rescue operation, that warranted his opinion. He failed it because of its overall condition involving rust, dirt and grime [473] . 2. This was one of the worst harnesses Mr Bacon had seen and he has seen many [474] . The photographs reveal damage, "dirty and covered in oil and crap" that has been there a lot longer than the recent damage caused at and around the time of the incident [475] . 3. Mr Doughty said wading into muddy water could result in grit and mud attaching to Mr Rowbotham's lanyard [476] . Photo at p1389a64 of Exhibit PX 1, Vol 8, Tab 230 has colour that would not be expected to about a third of the way through [477] . It was from dirt and grit [478] . 1. I accept the opinions of Mr Doughty and Mr Bacon to the effect that before the incident, the PPE of Mr Pollard and Mr Rowbotham should have been removed from service as not fit for purpose. 2. I note the findings and opinions of Messrs Doughty and Bacon are compatible with the findings made by Andrew Bannerman ([191], [331]) when, soon after the incident, he inspected all of the other harnesses and lanyards many of which he failed. 3. Messrs Pollard and Rowbotham had each been issued with a harness and lanyard. They kept them in their lockers when they were not using them. 4. Sometimes outside contractors visited the mine to inspect the height safety equipment, including harnesses and lanyards. If these items were kept in lockers, they could miss being examined. That was the case with the harnesses and lanyards of Mr Pollard and Mr Rowbotham. Mr Rowbotham guessed it might have been about 12 months before the incident when his equipment was last inspected by Bullivants, but he was only guessing [479] . Mr Pollard's had not been checked [480] and he had his equipment for years [481] . 5. The system for storage and inspecting the equipment changed after the incident. It is not necessary to set out the detail of the new system. It is sufficient to note that PPE is no longer kept in personal lockers. It is available always for an external expert inspection, every three months. Equipment is tagged with a colour indicator following the inspection which will indicate whether it is in currency. This was a system that could have been implemented by the defendant prior to the incident without undue inconvenience or cost. 6. The system in place at the time of the incident allowed inspections of harnesses and lanyards to be missed by outside contractors when they attended the mine to inspect. This was plainly defective. 7. The defective system was manifested in an inspection by Mr Bannerman on 20 June 2012. He attended the mine and conducted a visual inspection of height safety equipment. He failed 50 to 60 harnesses and lanyards [482] . Reasons were: past their use-by date [483] ; holes [484] ; cuts in the webbing [485] ; rust [486] ; buckles not closing properly [487] ; texta markings [488] . Most retractable lanyards failed [489] . Some fixed lanyards were five years out-of-date [490] . The connection points on some had seized open or seized closed [491] . 8. I find the defendant in breach of its health and safety duty as particularised by the prosecutor in particulars 12(e) and 12(g) of the Second Amended Summons. 9. The question then is whether the breach exposed Mr Pollard and/or Mr Rowbotham to risk of death or serious injury. 10. A system that allowed the workers to keep PPE in their lockers was a system that allowed them to use the same equipment in all instances and to use it without examination by external examiners. It was a system that allowed for the use of incorrect PPE and for PPE that should have been removed from service. To allow workers to use PPE in this way exposed them to risk, and Mr Pollard and Mr Rowbotham were so exposed. 11. In the case of Mr Pollard, however, the defendant says that he had not connected his lanyard properly to his harness. It is said that he connected his lanyard to the sternum strap and not to the D-ring as he should have. I am satisfied Mr Pollard connected his lanyard to the D-ring. 12. I accept Mr Pollard's evidence that the lanyard was connected to the D-Ring. I accept that this was his usual practice and that he 'thought it was the only way you could use it'. [492] His practice was to keep his lanyard attached to the D-ring of the harness at all times [493] . He said in effect he would not attach his lanyard to the front of his harness as it would impede him in the work he was doing in trying to connect the chains. [494] His evidence was "… if I connected the … loader to the front of my harness I wouldn't have been able to use my hands …. the safety harness where connected on the back it freed my hands … up to do work." He said that he had never connected his lanyard to the front of his harness. The sternum strap would be a difficult point to which to attach the lanyard [495] . 13. The main point supporting expert evidence that the lanyard was attached to the sternum strap is that there was no indentation on the D-ring caused by the incident as might be expected if the lanyard was attached to it. Mr Noble, however, agreed that there was a scenario that allowed the lanyard to break without applying force to cause an indentation on the D-ring [496] . 14. I am satisfied beyond reasonable doubt that the defendant's breach exposed Mr Pollard and Mr Rowbotham to risk of death or serious injury. Particular 12(f) 1. This particular alleges the defendant should have implemented: … the development, implementation and enforcement of a documented policy prohibiting the use of the buckets of loaders as work platforms or for working at heights (Work Platforms). 1. It was common ground that there was no written material expressly prohibiting the use of buckets of loaders as work platforms or for working at heights. 2. I have dealt with the policy prohibiting the use of buckets earlier principally at [235] to [251]. 3. The defendant points to written material which it says had the effect of a prohibition. Its "Work Safely at Heights" document dealt with work at heights. Paragraph 5.0 of the document specified the equipment that could be used to access high places. That was [497] : * An elevated work platform (EWP), * scissor lift, * Safety cage connected to a forklift or integrated tool carrier. 1. The defendant also points to the safety awareness package which prescribed that the correct tools and equipment "must" be used when carrying out a task and added "Do not improvise" [498] . 2. It does not follow from this that the policy prohibiting the use of a bucket did not have to be expressed in writing. Whether it should have been in writing needs to be determined after taking a number of matters into consideration. They include the matters in s 18 of the Act. 3. The likelihood of the hazard or the risk concerned occurring must be assessed objectively. Considering the policy prohibiting the use of a bucket and the workers' state of knowledge around this, the likelihood of the workers getting in the bucket to undertake the work was relatively low. In the event of their getting in the bucket, the likelihood of the risk manifesting itself in injury was relatively high. 4. The degree of harm that might result from the risk was extremely high and included potential fatal injury. 5. I have dealt with the defendant's actual and/or constructive knowledge of the risk [499] . 6. The defendant knew of a way of eliminating or minimising the risk and that was to undertake the work entirely from the 26 sub level and the platform above it. The defendant also knew that a way of enforcing that was to inform the workers expressly that they were not to use the bucket and to include that in the JSA [500] . Having this as a written rule in the defendant's Working Safely at Heights document would have aided that. This is not so much from the point of view of informing the workers of the prohibition on the use of a bucket. They knew that. It was more from the point of view of stressing the importance and significance of it. Mr Olds, for example, gave evidence supporting the view that "clear writing" as now exists would be more effective [501] . 7. Working from the 26 sub level and the platform above and not from the bucket was a way of eliminating or minimising the risk. So was including a prohibition on the use of a bucket as a work platform in the defendant's documented policy for working at heights. 8. The cost of implementing a documented policy would have been negligible. 9. The defendant relied on the cartoon poster [502] . 10. There are two messages that can be drawn from that. Workers are to work safely and are not to work on the bonnet of a loader. The poster was displayed in many parts of the mine. That demonstrates that it would have been simple to display in many parts of the mine a message not to work in the bucket of a loader. As a bucket might be seen as a safer platform than a bonnet and, accordingly, more likely to be used than a bonnet, that would suggest it was more important to get the message to the workforce not to work from a bucket. 11. There was evidence to the effect that there is a limit to what can be documented. Considerations such as keeping material to a manageable size, how much information a person can absorb, the mix of languages in the workforce, levels of literacy, the utility of the documentary word as against the spoken word come into play. So too do things like the obviousness of the risk and whether there is anything to be gained by putting it in writing. 12. I do not accept that these matters justified not including the prohibition in written form. What underlies the matters in the previous paragraph still exist. Yet, there is now a documented policy prohibiting the use of a bucket. Mix of languages and levels of literacy were a fact of life at the mine and were matters to be taken into account in ensuring the safety message got through to all workers. Indeed, the greater the mix of languages and literacy, the greater the need for simplicity in the message and the greater the need to ensure that the message got home. There could hardly be anything simpler than "DON'T EVER USE A LOADER BUCKET AS A WORK PLATFORM". That would not add unnecessarily or inconveniently to safety messages. The defendant itself relied on the cartoon poster as getting a message across. If it could do that for the bonnet of a loader, it could do it for the bucket. 13. Bearing in mind the above matters and that the duty is to "ensure" so far as reasonably practicable, I am satisfied that the prosecutor has established breach in respect of this particular. 14. The next question then is whether the breach exposed Mr Pollard and/or Mr Rowbotham to risk of death or serious injury. This will depend on what effect, if any, the inclusion of a written prohibition in the defendant's written safety material would have had. 15. Having a written policy would not have eliminated the risk, but it would have minimised risk in the sense that the workers would have been more mindful of the seriousness of the prohibition and the likelihood of enforcement of penalties for breach. The evidence on this is not direct from Messrs Pollard or Rowbotham. This conclusion needs to be inferred. I infer it from the following. * Mr Pollard said, and I accept, that if he had been told not to work from the bucket, he would not have done it [503] . * Mr Pollard stated that if he had been told by any of his supervisors that the work should only be done from the 26 sub level he would have only worked from that level [504] . * Mr Rowbotham stated that if the JSA had specifically stated that it was not permitted to work out of the bucket of the loader, then he would not have done so on 8 June 2012. [505] * Mr Olds's evidence that the prohibition was not a safety rule until after the incident [506] . He also said work would not have been done from the bucket if the JSA had said work was to be done only from the level. * Mr Pollard stated that he knew that his supervisor, Mr Ridley, was coming down to the job site to inspect the work and did not expect that there would be any issue with him working out of the bucket of the loader, because he thought that was the way they expected the job to be done. [507] This was not an instance of disobedience. For reasons which I shall give later, the JSA in this case was a result of a defective process and was a defective document. This was a case of Mr Ridley effectively arming Mr Pollard with a JSA that was so defective that it allowed that work from the bucket could occur. This was an instance of Mr Pollard using his initiative in circumstances where he had been sent to work and to start work by Mr Ridley in his absence. 1. I do not consider that rules against working in a shaft without a full shaft inspection or working under a suspended load bear on this. Mr Pollard had not applied his mind to these matters [508] . Further, if the system allowed that the workers could use the bucket, then it allowed they could work under a suspended load. 2. I am satisfied beyond reasonable doubt that the defendant's breach exposed both Mr Pollard and Mr Rowbotham to risk of death or serious injury. Particular 13(a), (b), (c) 1. It is convenient to deal with these three particulars together. 2. This particular alleges: the Defendant failed to ensure the provision of adequate information, training and instruction that was necessary to protect the Workers from the Risks in relation to: (a) the Risk Assessment; (b) the Safe Work Procedure; (c) the SWMS 1. I have found that the defendant was not required to undertake a Risk Assessment or Safe Work Procedure or SWMS as these matters were defined in the Second Amended Summons. Accordingly, the prosecution must fail in respect of these particulars. Particular 13(d) 1. This particular alleges: the Defendant failed to ensure the provision of adequate information, training and instruction that was necessary to protect the Workers from the Risks in relation to: (d) the Work Platforms 1. Particulars provided have refined this allegation. The case is that the defendant failed to provide the workers with adequate information, instruction and training in relation to work platforms as follows: 1. the identification of what were appropriate work platforms for working at heights to perform the work; 2. instruction on the prohibition on loader buckets being used as a work platform or while working at heights to perform the work and the risks associated with using a loader bucket as a work platform; 3. where the work was to be performed. In the case of the Workers (as distinct from Mr Olds) this should have been from the 26 sub level entry road way to the shaft (as that term is defined in the FAS), near the shaft sill and the 26 sub level and not from the bucket of the loader; 4. how to ensure means of communication and lines of site are maintained while undertaking the Work. [509] 1. I start my analysis with some short observations. 2. As to (1) and (3) above, to the extent that there was any information, training and instruction, it was what was conveyed to Mr Pollard in the meeting of 5 June 2012. 3. As to (2), so far as the particular task was concerned, there was no instruction not to use the bucket as a work platform. 4. As to (4), the evidence does not disclose in what way the defendant has failed and nor do the prosecutor's submissions. This aspect of the prosecution case is not made out. 5. As to (1), (2) and (3), I am satisfied that the prosecution has established the case in relation to failure of instruction. In relation to the circumstances of the job, including the necessity of getting into the bucket to release the restraining chains, Mr Slade foresaw the possibility of workers staying in the bucket. Mr Dally foresaw the possibility of the workers working from the bucket. He warned Messrs Tavian, Harris, Ridley and Gauci about this. He expected, not unnaturally, that they would pass on to the workers that they were not to do it. It was good enough for Mr Dally to think the workers should have been given the appropriate instruction. The defendant ought to have done so and failed to do so. 6. Further, I consider the prosecution case is made out in respect of the failure to provide adequate information and training. The circumstances of this case reveal that though it was generally known that work was not to be carried out from the bucket of a loader and that breach had significant potential consequences, that is not something that was taught or documented in any formalised way. Mr Pollard had been disciplined for not wearing a seat belt on an earlier occasion. I accept that there were rare occasions, unknown to the defendant, when work was carried out from a bucket of a loader. That is consistent with Mr Slade's evidence that such instances could occur even though an unwritten prohibition was in place. That highlights the necessity of doing all that is reasonably practicable to ensure health and safety. As with a written prohibition, specific information and training in relation to the prohibition on the use of a bucket as a work platform would have brought home to the workers the importance and significance of the prohibition. The cost of information and formal training in relation to the prohibition would have been negligible. 7. The breaches exposed Messrs Pollard and Rowbotham to risk. With adequate information and training, the risk of breach of the prohibition on the use of the bucket would have been minimised and the risks accordingly minimised. This is supported by the reasons at [357]. With adequate instruction not to use the bucket and to work from the 26 sub level or the platform above it only, the risks would have been eliminated or minimised. 8. I am satisfied beyond reasonable doubt that the elements of breach and exposure to risk have been established in relation to this particular. Particular 13(e): 1. This particular alleges: the Defendant failed to ensure the provision of adequate information, training and instruction that was necessary to protect the Workers from the Risks in relation to: (e) the Safe Plant and Equipment. 1. The prosecutor is not pursuing this particular. Particular 13(f) 1. This particular alleges: the Defendant failed to ensure the provision of adequate information, training and instruction that was necessary to protect the Workers from the Risks in relation to: (f) the PPE 1. In particulars provided, the prosecutor asserted that the defendant should have provided information, training and instruction in relation to: (6) the 'PPE' (as that term is defined in the FAS) as follows: (a) what PPE (as that term is defined in the FAS – being fall arrest equipment such as harnesses, lanyards and personal energy absorbers which were fit for the purpose of undertaking the Work) should be used while performing the Work; (b) that PPE is fit and appropriate for purpose before it is used, including where there is a risk of a fall, that a personal energy absorber (deceleration device, inertia reel, karabiner) should be used; (c) appropriate anchorage points for PPE while performing the Work; (d) appropriate methods of attaching PPE to anchorage points while performing the Work; (e) how to correctly wear and use PPE; (f) how to safely work at heights; (g) the risks associated with using PPE that is not fit for purpose; [510] 1. I have indicated earlier the system that allowed the workers including Mr Pollard and Mr Rowbotham to use the same equipment every time, whether it be right or wrong equipment, and allowed them to use it without its having been available for examination by external examiners. The defendant must have been aware of this or at least should have been. It should have been apparent to the defendant that such system of information, training and instruction in relation to PPE that it had was not functioning properly. 2. Personal examination alone of the PPE by the workers was no satisfactory way of seeking to ensure suitability and safety of PPE. If that were so, there would have been no need for external examiners to examine the equipment. The defendant arranged for external examination of PPE, but did nothing to ensure that all equipment was examined. Its system of information, training and instruction, such as it was, in relation to PPE was a failed system and that should have been obvious to the defendant. 3. Breach of this particular is made out by the prosecutor. 4. This breach exposed Messrs Pollard and Rowbotham to the same risk as that in relation to particulars 12(e) and (g). 5. I am satisfied beyond reasonable doubt that the elements of breach and exposure to risk have been established in relation to this particular. Particular 13(g) 1. This particular alleges: the Defendant failed to ensure the provision of adequate information, training and instruction that was necessary to protect the Workers from the Risks in relation to: (g) the Fall Arrest Systems. 1. In conformity with particulars supplied, the prosecutor submitted that a reasonably practicable measure that the defendant failed to implement was to provide the workers with information, instruction and training in respect to appropriate height safety fall arrest systems with respect to: 1. Perilya Broken Hill Limited's systems for inspection, tagging, removal, storage and issue of PPE, including the requirement to store PPE in the safety store and obtain PPE on a shift by shift basis, and not to store PPE in a personal locker or fail to comply with Perilya Broken Hill Limited's approved system; 2. compliance with Perilya Broken Hill Limited's "Rules to Live By" – in particular, Rule 6 "ALWAYS use correct fall protection when working at height or within prescribed distances from open holes" and Rule 4 – "NEVER work or travel under unsecured ground or suspended loads" 3. the meaning of a "prescribed distance from open holes" in the Perilya Broken Hill Limited's "Rules to Live By"; The prosecutor has added another item to that list, being: 1. The need to comply with the information, training and instruction provided to the Workers and Mr Olds in relation to the Risk Assessment, the Safe Work Procedure, the SWMS, the Work Platforms, the Safe Plant and Equipment, the PPE and the Fall Arrest Systems. 1. The case in relation to (3) should be rejected as it was not the subject of evidence. 2. The case in relation to (4) should be rejected as it was not included in particulars supplied to the defendant. 3. The specific matters that the prosecutors' submissions addressed in relation this particular were that the training provided did not: 1. refer to not working from the bucket of a loader 2. refer to not reeving a lanyard around an object as opposed to using a designated attachment point; 3. refer to the requirement to present PPE for inspection or assessment; 4. list the detail of the inspections that riggers were required to conduct themselves. 1. The first of the above matters in [386], not working from the bucket of a loader, has been covered in these reasons. Just as a written policy should have been in place, so should training. There was no formalised training specifically directed at not working from the bucket of a loader. 2. Training would have minimised the risk in that it would have reduced the likelihood of Messrs Pollard and Rowbotham getting into the bucket. Adequate instruction would have eliminated or minimised it. In this instance, particularly in light of Mr Dally's statement to him and others that the workers were not to work from the bucket, Mr Ridley should have carried that through and instructed the workers accordingly. That instruction, if given to the workers on the day of the incident, would have been adhered to. 3. As to the second matter in [386], reeving a lanyard was a common practice [511] . It was done by "All of us involved in the job". The reference to the job is not a reference limited to the job being done on 8 June 2012. The defendant should have known of the practice. Information, training and instruction ought to have been provided designed to stop the practice of reeving. Such information, training and instruction would have minimised the risk in this case. 4. As to the third matter in [386], the relevant facts have been covered. To the extent that the defendant had any system requiring PPE to be presented for inspection or assessment, it is plain, especially from the evidence of Mr Bannerman [512] and Inspector Smith [513] and the change in system after the incident that it was not enforced. The defendant was not providing adequate information, training and instruction in relation to its system for inspection of PPE and accordingly this aspect of particular 13(g) is established. As a result, Mr Pollard and Mr Rowbotham were exposed to the same risks as in relation to particular 12(g). 5. As to the fourth matter in [386], this aspect of the case should be rejected as it was not the subject of evidence. 6. I am satisfied beyond reasonable doubt that the elements of breach and exposure to risk have been established in relation to this particular. Particular 14 (a) 1. This particular alleges: the Defendant failed to ensure the provision of refresher training to the Workers in relation to: (a) working at heights 1. This particular was not refined with the provision of further particulars. The result is that there has been no identification of the content of what should be included in the refresher training. The prosecutor's submissions do not advance this [514] . This then spills into a matter not advanced by the prosecutor and that is how the breach, assuming it is to be established, exposed Mr Pollard and or Mr Rowbotham to risk of death or serious injury. 2. I am not satisfied beyond reasonable doubt that the elements of breach and exposure to risk have been established in relation to this particular. Particular 14(b) 1. This particular alleges: the Defendant failed to ensure the provision of refresher training to the Workers in relation to: (b) rigging work 1. The prosecutor's written submissions failed to deal with this point, inadvertently making submissions on another subject matter. At the conclusion of oral submissions, I was directed to a number of paragraphs of the prosecutor's written submissions. They were 9.318-9.320, 9.342-9.347, 9.356-9.365. 2. The paragraphs 9.356-9.365 may be ignored on this point. To the extent necessary, they have been dealt with in dealing with particular 14(a). The remaining paragraphs deal with PPE. 3. The only material from the remaining paragraphs of the prosecutor's submissions is that Mr Pollard and Mr Rowbotham, as did other workers, engaged in the practice of reeving and their PPE was in a very poor condition and unfit for service. 4. I have referred earlier to the failed system in relation to PPE. It is a system that could not have existed if adequate refresher training had been provided in relation to PPE. The defendant must have known that PPE was not being produced for inspection by visiting outside examiners. It should have known of the practice of reeving. It should have focussed on these matters and provided refresher training to ensure these practices were eradicated. The failure to do so constitutes breach by the defendant of its duty. 5. Had appropriate refresher training been provided, these practices would have been eradicated and the risk to Mr Pollard and Mr Rowbotham minimised. 6. I am satisfied beyond reasonable doubt that the elements of breach and exposure to risk have been established in relation to this particular. Particular 14(c) 1. This particular alleges: the Defendant failed to ensure the provision of refresher training to the Workers in relation to: (c) developing risk assessments. 1. In view of my findings earlier, this particular cannot apply to risk assessments generally, but must be confined to JSAs. 2. I am not satisfied that this particular has been established. Both Mr Pollard and Mr Rowbotham had assessments in the JSA process – Mr Pollard on 28 February 2011 and Mr Rowbotham on 5 March 2011. In light of this, it is not demonstrated what refresher training was required. Particular 15(a) and 15(d) 1. The allegation pleaded is that: The defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to take the following measures: (a) assess and review the adequacy of the procedures developed for undertaking the Work to ensure that it identified the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work; … (d) assess the adequacy of the Job Safety Analysis which had been developed to ensure that it identified the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work; 1. It is convenient to deal with (a) and (d) together. This is because in particulars supplied by the prosecutor the "procedures" referred to in (a) were identified as the JSA and the "ad hoc and unwritten procedure developed by the Workers while undertaking the Work". As a result, (a) and (d) both concern the JSA. 2. Mr Slade gave an answer that is capable of being interpreted as his view being that a JSA was not required. The relevant question and answer were as follows [515] : Q. If you did that, apart from actually getting a JSA done would you need to have any other particular step by step documentation? A. I would like to have seen it but you know as you say a lot of the value is in having the conversation, stepping through it in a methodical way. 1. His observation that value is in the conversation should not be understood as this being a satisfactory safety process in lieu of a JSA. His other evidence about a JSA for this job and matters he would have liked to have seen in it does not allow for that. 2. A JSA was required. 3. I start by looking at what is required of a JSA. This may be discerned in the first instance from the defendant's documents. 4. What is required in a JSA is detail that shows: * how the hazards were identified; * how the risks were assessed; * how the decisions around necessary controls were made. [516] 1. This is affirmed by the defendant's HSE Management System document for "Job Safety Analysis" [517] . It sets out its purpose as: 1.2 This Broken Hill Job Safety Analysis Procedure provides prescription on how a level of risk that is as low as reasonably achievable and is acceptable may be achieved for all tasks within Perilya Broken Hill operations. Its objectives are described as: 2.1 … to prescribe practice that: 1. Ensures all task hazards are identified 2. Ensures all task risks are controlled 3. Ensures task risk management is communicated 1. Clause 2.6 [518] of the document sets out six steps in the JSA process. These steps also affirm the need to identify, assess and control risks. 2. Mr Cockbain gave evidence corroborative of the evidence as to the requirements for a JSA [519] . 3. To ensure that a JSA records what it should, there is an established procedure. Clause 2.6.2 of the document [520] states: JSA must be conducted in a team setting. The team to be made up of: • Task supervisor • All personnel who will be performing the task. The JSA should be done on job site however if the experience and competency for the task is available in the team the JSA may be done in the shift start up room or other suitable place. 1. The document also included the following under 'RESPONSIBILITIES": Task supervisors shall ensure compliance with the requirements for JSA. 1. The task supervisor in this case was Mr Ridley. The personnel performing the task were Messrs Pollard, Rowbotham and Olds. The JSA was not conducted in a team setting including those people. In fact, Mr Rowbotham and Mr Olds had no input or consultation at all not only in the content of the JSA but in any part of the planning. The JSA was not done on the job site. The defendant's personnel had been to the job site on several occasions for planning and safety purposes, yet Mr Pollard was required to prepare the JSA without having been to the site at all for those purposes. Nor had Mr Rowbotham and Mr Olds been to the site. Experience and competency in the team for the task did not qualify for the JSA being done in another suitable place. 2. Further, Mr Ridley did not "ensure compliance with the requirements for JSA". That is evident from the obvious deficiencies in the JSA. It is also evident from the fact that he should have been part of a team conducting the JSA and was not. There was no team and his only input was to cast his eye over the document and sign it. 3. The defendant's documents warn against not conducting the JSA in a team setting. 4. The defendant's Risk Management Guideline document provides a number of guides or directions relating to risk assessment and risk management. 5. One is: One of the most common problems in risk management is poorly executed or implemented risk assessments. Whenever a risk assessment is undertaken it is critical that the process is applied in the correct way. [521] 1. A second is: A successful risk management process is heavily dependent on effective communication and consultations whilst performing the following steps: 1. Set the scope 2. Identify the hazards 3. Analyse & evaluate the risks 4. Treat the risks 5. Monitor and review. The risk management model used in Perilya Broken Hill … is based on this process, while providing additional detail for some of the key steps." [522] The only communication and consultation of any note with personnel preparing the task was with Mr Pollard in the meeting of 5 June 2012. 1. A third is: The success and value of the risk management process is determined by the quality of the consultation and communication process. Success hinges on involving the right people and using the right information, expertise and experience. Hence, identification and participation of stakeholders is critical. A risk assessment is worthless if it does not involve communicating with the correct stakeholders. [523] There was next to no consultation or communication with the correct stakeholders. 1. A fourth is: The less formal nature of 3TCs and JSAs can present a serious risk in itself. It is essential that these tools are used carefully. If a significant or uncertain risk is missed or not properly managed, participants may be lulled into a false sense of security. Some things to look out for include: • New tasks or one that is being done in a new place or using a new method … [524] This was a new task using a new method. The "serious risk" warning should have been heeded. 1. A fifth is: The communication process should involve active dialogue and not just paper being passed along as emails or left in in-trays. Ultimately a risk assessment is next to worthless if it is done in isolation without involving those doing the work, or not communicated to all those doing the work or affected by the work. [525] The risk assessment did not involve all those doing the work and was not communicated to all of them. It stood the risk of being and was, for reasons I give, "next to worthless". 1. In the JSA "a significant or uncertain risk" was missed and that was the risk of fall from height if the bucket of the loader was used as a work platform. It is no answer to say that there was no risk, because the defendant's work process, if followed, meant there was none. That does not cause the risk to cease to exist. Assuming the defendant's work process covered and spelled out every step, that would recognise the risk, assess and control it. 2. Mr Harris agreed that it was not appropriate for one person to simply to write out a JSA and then present it to others without those persons having input into its development. He agreed that a JSA should be prepared as a team, particularly as some members of the team may not be aware of, or understand each of the steps of the task. He noted that this was an important consideration, particularly as there might be persons with different subject expertise performing various parts of the task. He also agreed that it would be important to have all members of the team involved in completing a JSA because if only one person completed the JSA, there was a risk that a step would be missed in the process, or a hazard missed or an appropriate control measure not identified [526] . 3. Mr Harris agreed that if the supervisor was not the subject matter expert, he should ask questions of the team involved in undertaking the JSA about the steps involved in the task so that he had a better understanding of the job, and so that he had a better ability to assess the appropriateness or comprehensiveness of the JSA [527] . Mr Harris also stated that in signing the JSA, the supervisor is approving the use of the JSA for the task [528] . 4. If Mr Ridley had a full understanding of the job, it should have been patently obvious to him that the JSA was a totally inadequate document. 5. Mr Ridley's review was limited to a cursory review of the JSA prepared by Mr Pollard. He did not take any steps to discuss the content of the JSA with anybody involved in the planning or undertaking of the task to ensure that it represented an appropriate risk assessment process, and reflected the methodology that had been discussed. [529] 6. Mr Ridley told Mr Pollard to start and said he would be down later. It is apparent that the job was to be commenced without his supervision and continue without his supervision for as long, at least, as his other commitment would take. 7. The process of the preparation of the JSA in this case was seriously flawed. 8. I am satisfied the JSA itself was inadequate. 9. Mr Cockbain thought the JSA was inadequate [530] . He thought it did not cover the work process as it was contemplated by Messrs Dally, Harris, Ridley, Tavian and Gauci [531] . It should have recorded that the men were to work from the 26 sub level [532] . This is to demonstrate control in relation to fall risk [533] . 10. The work process, as put to Mr Cockbain by the defendant in cross-examination [534] , was: * slings are put around the weight basket when it is securely in the bucket on the ground; * chains are attached to the slings; * one of the persons goes up to the level above 26 sub level and drops a rope after attaching it to a lug of the flask; * the rope drops in the shaft and can be reached from 26 sub level; * the rope is taken back by a person on 26 sub level and tied to one of the hook ends of the chain; * another rope is dropped and taken and attached to the second hook; * the person on 26 sub level moves himself either outside the exclusion zone of the loader or to the platform above 26 sub level; * the loader driver is given a signal and moves the loader, placing the bucket with weight under the flask; * Mr Pollard and Mr Rowbotham could then, from the platform, above 26 sub level pull the ropes with hooks attached; * the hooks are attached to the shackles by the persons on the platform; * the loader bucket is dropped sufficiently so that it is not bearing any of the weight; * if the chains are too long, the rope is tied back on the hook, the hook is taken off the shackles and lowered back onto the weight basket, the weight basket is brought back to the ground level, the chains would be shortened and the process repeated; * the shortening process could be repeated until the chains were the right length. 1. Mr Cockbain agreed that all of those steps address and eliminate the risk of falling from height [535] . 2. That is a process to which Mr Rowbotham and Mr Olds were not privy. It is a process to which Mr Pollard was not fully privy. It is a process that was not documented. 3. The JSA should have, at least, included steps along the lines of the matters put to Mr Cockbain in the cross-examination. It was that process that was to control the risk of fall from height and none of it was in the JSA. It might be said that steps 2 to 4 in the JSA were steps in the process. They were not steps, however, that indicated the work process as described by the defendant and they were not directed to the risk of fall from height. 4. Also missing from the JSA was how the weight basket would be able to be loaded back into the bucket of the loader after the load cells had been adjusted. That was not even covered in any of the planning processes. 5. Critically missing from the JSA was the identification of the hazard of falling from height, the very first step required in the preparation of the JSA. This was a hazard Mr Dally foresaw and he told Messrs Tavian, Harris, Ridley and Gauci. As the hazard was not identified so also was any control for it not identified and was also missing from the JSA. The very thing Mr Dally expected to be in the JSA was missing. It hardly lies with the defendant to blame Mr Pollard for that in circumstances where: * its personnel had several site visits to work out the task and examine safety and Mr Pollard had none; * it engaged Mr Pollard in the planning process on one occasion only and that was 5 June 2012 when several things were missing from that discussion [127]; * it failed to comply with the proper processes for preparing a JSA. Mr Ridley, task supervisor, did not ensure compliance with the requirements for a JSA; * it required Mr Pollard alone to undertake the JSA; * on the terminology of the defendant's own documents the JSA was next to "worthless". The defendant's Risk Management Guideline provides, in addition to matters already mentioned: Critically, risk plans must be discussed with all those directly doing the activity or indirectly affected by the activity. As an example, a risk assessment such as a JSA for a particular operational or maintenance activity must involve those doing the task and be communicated to all the people working on the job. It must also be communicated to supervisors and others who may be affected by the activity. [536] 1. The JSA had less detail than Mr Slade would have expected [537] . He would have liked to have seen more detail in the steps, the tasks, the controls. [538] [539] 2. Mr Slade's main concern was ensuring people were not going to fall from heights. He understood the process involved working from the platform. Pulling the chains up and connecting them to the flask was a significant safety feature related to the risk of falling from heights and should have been in the JSA [540] . 3. Mr Slade had seen a document in the course of preparation by Mr Tavian before he, Mr Slade, went on leave before the incident. The document, when completed, would be a step-by-step process of the job to be done. The men doing the job would be talked through the process and shown the document [541] . The document was never prepared. As to Mr Pollard, he was talked through some of the process, but never shown a step-by-step document. As to Mr Rowbotham, he benefited from neither. 4. This was a first time exercise for the defendant. It could be done in different ways. It could be done as it was by undertaking some of the tasks from the bucket of the loader, or it could be done by working from the 26 sub level and the platform above it. The defendant's personnel assumed it would be done in the latter way. That assumption was not the establishment of a safe system for doing the task. Much less was it the implementation of a safe system. The implementation of a safe system was left to Mr Pollard. He might have been an able and experienced rigger, but the establishment and implementation of the system should have been put in place by the defendant. 5. The defendant sent Mr Pollard to work with a JSA it knew or ought to have known was deficient and next to worthless. It is not to the point that the document does not convey to the reader that Mr Pollard might be working at height. That is something Mr Ridley had been warned about by Mr Dally and he should have been alert to it. He can hardly claim the excuse that Mr Dally did not tell him he wanted the ban on using the bucket in the JSA. He was a supervisor. He was the supervisor for this job. Having been told by Mr Dally that he did not want the workers in the bucket should have been enough for him to ensure that was in the JSA and ensure he told the workers that. True it is that Mr Pollard could have and should have stopped the job and the changed the JSA when he realised he would be getting in the bucket, but it was the defendant which put him in that position. If Mr Ridley had done his job, Mr Pollard would never have been put in that position. 6. If Mr Ridley had done his job properly, everybody involved would have gone to the site and together there performed the JSA and the bucket issue would have been dealt with. Alternatively, (though this option would not follow proper process) Mr Ridley could have amended the JSA on the surface with Mr Pollard with a record in it that the bucket was not to be used as a work platform. 7. The defendant does not avoid breach of its duty by falling back on its safety systems (not all of which it complied with particularly in relation to the preparation of the JSA) and saying it was within the knowledge, power and ability of Mr Pollard to fix the problem and fix it properly. It was within the power of the defendant to do this and the defendant had the duty to do it. 8. The matter is even worse in Mr Rowbotham's case. In the situation described, his safety was left in the hands of Mr Pollard. It had effectively been delegated to Mr Pollard. Mr Rowbotham had absolutely nothing to do with the planning. The defendant knew he was not involved in the preparation of the JSA. In telling Mr Pollard to prepare it, the defendant was effectively excluding Mr Rowbotham from it. The defendant knew he had been excluded when Mr Pollard turned up to Mr Ridley's office with the JSA not signed by Mr Rowbotham. Apart from one cursory communication, the defendant had no direct contact at all with Mr Rowbotham about the job or safety. 9. I was not impressed by the evidence of the witnesses who thought this was an adequate JSA. That evidence does not sit well with the defendant's documents, with Mr Slade's evidence and with Mr Dally's expectation of what the JSA should have contained. When one looks at the proper processes to be followed for preparing a JSA, notes the multiple factors in those processes, compares what the defendant says was its developed processes for the task (a process that had not been fully developed) and compares that with what is written in the JSA, it defies common sense to suggest that this was an adequate JSA. 10. Mr Gauci said the JSA reflected the way in which he envisaged the job being done [542] . I think that view is untenable. Even on his truncated version of how the job was to be done, as explained by him at the meeting of 5 June 2012, it does not do that [543] . There are only three steps, the second, third and fourth, of any note in the JSA. The JSA does not include [544] : * men to be working "on the platform above"; * "lower down some tag lines"; * "connect them (the tag lines) to your chains"; * "raise the bucket"; * "raise the chains up once it's (i.e. the bucket) in position". Nor was shortening of chains, which Mr Dally envisaged, in the JSA [545] . 1. Mr Harris's view was that there were no hazards associated with most of the steps in this job so they did not need to be recorded on the JSA [546] . At its highest, the most that can be said from the defendant's point of view is that the hazards associated with this job were controlled if all the steps in the defendant's process were followed. That means they should have been recorded. Had they been recorded, that would mean the hazards had been controlled, not that they did not exist. 2. Mr Ridley thought the JSA was adequate [547] . Having been told by Mr Dally that there should be no work done from the bucket of the loader, that is a surprising opinion and I do not accept it. Further, the JSA has the deficiencies I have set out in the earlier paragraphs. 3. Mr Ridley's evidence on this subject matter was unimpressive and I do not accept it. He thought there was nothing missing from the JSA that should have been included. That view cannot stand with Mr Dally's and Mr Slade's evidence on this point which I accept. I thought a lot of his evidence in-chief when examined on the JSA was unimpressive. As he and the defendant relied on Mr Pollard as "the subject matter expert" to fine tune the job, it is not surprising that he was not fully conversant with all the details of the process of undertaking the task. He effectively said as much [548] , "I'm not the rigger, and I wasn't on the job". This brings him squarely within Mr Dally's evidence that as supervisor, he should understand the steps a job had and, if he did not, he should not have signed off on the JSA and should have consulted Mr Tavian or Mr Dally [549] . 4. The defendant's position is not improved by the 3TC process. 5. There is no way of knowing from Mr Pollard's or Mr Rowbotham's 3TCs whether a hazard did not exist or whether it existed but was controlled [550] . This is because of the way in which the 3TC forms were completed. Mr Pollard's 3TC for 8 June 2012 was in evidence and so were almost 100 of Mr Rowbotham's [551] . Mr Rowbotham's 3TCs were in the same form as Mr Pollard's and completed in the same way. 6. The 3TC form contained the following: [alternative text] STOP! Have you identified and controlled the HAZARDS in your workplace? Please circle the answer to this question for the hazards listed below This directed the workers' attention to hazards identified. If there were any doubt about this, it is affirmed in the defendant's 3TC Training Presentation. The written material there provided "5. Tick applicable hazards" [552] . 1. There were 23 hazard items listed and in every case the "Y" was circled by Mr Pollard and Mr Rowbotham. On the face of it, this tells the reader that the workers had identified each hazard and controlled it. This is nonsensical. 2. Mr Pollard gave evidence, and was possibly partially led into it, that for each item circled he had recognised that as a risk and had controlled it [553] . That is incorrect. There was no risk of "Unsafe Ground Conditions Above & Below", "Noise", "Unsound Supporting Structures", "Surrounding or Related Jobs", "Electrical Hazards", "Pressurised Systems", "Explosives & Blasting", "Exposure to Hot & Cold", "Working with or near Hazardous Substances", "Dust/Fumes/Gas", "Spills or Liquids", "Radiation", "Poor Ventilation" and perhaps others, yet Mr Pollard has circled "Y" for each of them. 3. What is worse from the defendant's point of view is that all the 3TC forms in evidence were completed in that way and the defendant did nothing about it. No judgment or thought was applied by Mr Pollard or by Mr Rowbotham in completing the form. The defendant could not possibly be satisfied that Mr Pollard or Mr Rowbotham was using the 3TC process correctly. The defendant could be no more satisfied that Mr Pollard had addressed "Working at Heights" than that he had addressed "Radiation". 4. The 3TC system might have been a step in the defendant's safety processes, but it is a step that should have been plain and obvious to the defendant was not being used properly at least by Mr Pollard and Mr Rowbotham. 5. The defendant's answer to that, in part, is that it can be seen from the nature of the job "SKIP FLASK WEIGHTS" that radiation, for example, is not an issue. That is not a realistic answer. It may be for radiation in this instance, but there are numerous items among the 23 that could possibly have existed in this work situation or could exist in any work situation and marking "Y" does not tell the reader or even the supervisor if a hazard existed and, if it did, if it was controlled. 6. The defendant relied on other content in the 3TC form. The 3TC form did have a direction at the bottom of each page, "If you can't do the job safely, don't do it!" The defendant cannot rely on this in circumstances where it knew of should have known that the 3TC process was either misunderstood or not properly used by Mr Pollard and Mr Rowbotham. 7. The defendant submitted that on the second page of the 3TC form underneath the heading "Do – follow the plan" the author of the 3TC is asked whether anything has changed since planning and JSA is specifically identified. Mr Pollard circled N indicating no, that is, there had been no change. He accepted in his evidence that there had in fact been a change, that is, Mr Pollard had decided that he was going to be working from height, something he had not intended at the time he completed the JSA. In his evidence he agreed that it was not right to say there was no change. [554] Mr Pollard accepted that the question was reminding him to think about whether there had been a change and to go back to the JSA. His action was contrary to the written instruction that he had with him and which appeared in the 3TC. I am satisfied that when he completed the 3TC, Mr Pollard did not have his mind on its contents. That is evident from his encircling "Y" to all 23 items. He did not have his mind on the contents the defendant refers to in this submission. Further, I consider he had completed the paperwork including the 3TC before he determined on using the bucket of the loader as a work platform. That decision was made after the trial run and just before the weight was moved into the shaft. By then, all paperwork had been completed. 8. Had the defendant followed proper process in the preparation of the JSA, it is certain that a different JSA would have been prepared. One thing it would have done would be specifically address the risk of working at height and appropriate controls would have been put in place. That would have minimised, even eliminated, the risk to which Mr Pollard and Mr Rowbotham were exposed. 9. I am satisfied beyond reasonable doubt that breach and exposure to risk have been established in relation to these particulars. Particular 15(b) 1. The allegation pleaded is that: The defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to … (b) assess the adequacy of the implementation of the Control Measures. 1. The Control Measures refer back to the particulars in particular 12. 2. I have made findings that exclude a number of the Control Measures in this case. 3. This particular must be confined to the matters in particulars 12(e), (f) and (g), that is, the PPE, Fall Arrest Systems and Work Platforms. 4. As to the PPE and Fall Arrest Systems, I have dealt with these subject matters in dealing with particulars 12(e) and 12(g) and 13 (f) and 13(g). 5. It is sufficient to note that it was a lack of adequate supervision that allowed: * Mr Pollard and Mr Rowbotham to be using the wrong fall arrest equipment; * Mr Pollard and Mr Rowbotham to use fall arrest equipment that should not have been in service; * a system of external inspection of PPE in which not all PPE was examined as it was kept by workers in their lockers. 1. The case for inadequate supervision in this regard is made out. This breach allowed each of the matters specified in the previous paragraph. Had adequate supervision been provided, it would have prevented that and so minimised the risk to Mr Pollard and Mr Rowbotham. The provision of adequate supervision would not have been a costly or inconvenient undertaking. 2. As to the Work Platforms, I have dealt with that subject matter in dealing with particular 12(f) and 13(d). 3. It is difficult to know what to make of this particular. It asserts the defendant failed to adequately supervise. What it failed to adequately supervise is said to be the implementation of a Control Measure. When one goes back to particular 12(f), the Control Measure is a documented policy. The allegation, therefore, is that the defendant did not adequately supervise the development, implementation and enforcement of a documented policy. The documented policy the prosecutor has in mind is a policy prohibiting the use of a bucket of a loader as a work platform. But that document did not exist, so there was nothing to supervise. If the allegation is that such a document should have existed, that adds nothing to what is covered by particulars 12(f) and 13(d). This aspect of the particular is not made out. 4. I am satisfied beyond reasonable doubt that breach and exposure to risk have been established in relation to this particular. Particular 15(c) 1. The allegation pleaded is that: The defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to … (c) ensure that the proposed method of conducting the Work was assessed and approved by a supervisor or other suitably qualified person prior to the Work commencing, as being adequate to address the Risks and measures to eliminate or minimise the Risks for the Workers performing the Work. 1. This is a somewhat awkwardly worded particular. I take it to mean that the proposed method of conducting the work should have been assessed and approved by a supervisor or other appropriate person before work commenced. 2. Whether the proposed method of conducting the work be the unwritten process discussed at the meeting of 5 June 2012 or the JSA, it does not matter. 3. The unwritten process discussed at the meeting of 5 June 2012 was an incomplete process. The almost complete process was that put to Mr Cockbain in cross-examination and set out in [436]. Not even that was assessed and approved by a supervisor or other appropriate person. 4. The supervisor for the task was absent from the meeting of 5 June 2012 being the meeting that, more comprehensively than any other, dealt with and discussed the task. The supervisor for the task, not being at that meeting, could not know first-hand precisely what was discussed, let alone what Mr Pollard was told. The proposed method of conducting the work was not assessed by Mr Ridley at least to the full extent of all steps that might be required in the process. It is no answer to pass on to "the subject matter expert" responsibility for steps that had not been spelt out in the process. He was the one who was owed the safety duty. The matter could have been dealt with most simply if everybody involved had been at the site before the job started and before the JSA was prepared and the JSA prepared there. In that event, the proposed method would have covered all the steps necessary to do the work and, accordingly, would have been properly assessed and appropriately approved by the supervisor. The failure to do this constitutes breach by the defendant of its duty. 5. If the proposed method of conducting the work was the JSA then, for reasons already given, that was an inadequate document as a result of a deficient process. To the extent that was assessed and approved by the supervisor, it was an assessment and approval of something that could not qualify as a proposed method of conducting the task. 6. Assessment and approval of a proper proposed method of conducting the work would have been at negligible cost and inconvenience and would have minimised the risk of injury. 7. This breach allowed the work to proceed without proper safety measures in place. Accordingly, it exposed Mr Pollard and Mr Rowbotham to risk of death or serious injury. 8. I am satisfied beyond reasonable doubt that breach and exposure to risk have been established in relation to this particular. Particular 15(e) 1. The allegation pleaded is that: The defendant failed to ensure the provision of adequate supervision to protect the Workers from the Risks in that the Defendant failed to … (e) ensure that a suitably qualified and competent person was present when the Work commenced and while the Work was being performed to ensure that the Control Measures were in place and were being implemented to eliminate or otherwise minimise the Risks to the Workers to the extent reasonably practicable. 1. For reasons given earlier, the Control Measures under consideration are those concerning the PPE, the Fall Arrest Systems and the Work Platforms. These do not come into consideration unless the bucket of the loader was to be used as a work platform. Accordingly, the thrust of this particular is that there ought to have been supervision on the job to ensure that the bucket was not used as a work platform. 2. This was a new task that had not previously been undertaken. Mr Pollard had only limited involvement in the task planning. Mr Rowbotham and Mr Olds had no involvement in the task planning. The task planning was not comprehensive in that it did not cover all steps. For reasons given, the JSA was inadequate. It was necessary in these circumstances for supervision to be provided at least when the work commenced. This view is fortified by Mr Pollard being sent to work with a JSA with deficiencies that should have been patently obvious to Mr Ridley. It was inappropriate to leave Mr Pollard and Mr Rowbotham to their own devices with an instruction to start the job without the supervisor. 3. The supervision could have been provided with little or no cost or inconvenience. The absence of supervision at the commencement of the task means that the prosecution has made out a case for breach in relation to this particular. 4. The presence of a qualified and competent person when the work commenced would have eliminated this risk. 5. I am satisfied beyond reasonable doubt that the elements of breach and exposure to risk have been established in relation to this particular. Two further points 1. There are two further points I need to consider. 2. The first is a submission by the defendant that it is charged with an offence on a particular day, being 8 June 2012, and it cannot be found guilty in respect of an offence allegedly committed on any other day. That is correct, but it is of no concern in this case. The prosecutor does not seek any finding of guilt in respect of any other day and I have not made any finding of guilt in respect of any other day. If any of the breaches I have found occurred before 8 June 2012, they also occurred on 8 June 2012. 3. The second point is that the defendant has raised a defence of honest and reasonable mistake of fact. The submission was detailed. I trust I do the defendant no disservice by abbreviating it. For convenience, I shall continue to call this a defence, though it is doubtful that is what it is as it is a matter in respect of which the prosecutor bears the onus. 4. The submission was that offences under the Act are offences of strict liability – s12A. Defences of strict liability are capable of attracting the defence of honest and reasonable mistake of fact. The onus is on the prosecutor – Proudman v Dayman [555] ; He Kaw Teh v The Queen [556] . 5. Statements in the authorities indicate that the defence may not be available in cases concerning safety and industrial matters – Proudman at 540. Cases under the precursor legislation to the Act denied the availability of the defence. This was because the offences were offences of absolute liability - WorkCover Authority of NSW (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [557] . 6. It is necessary to have regard to the words of the statute [558] , to the subject matter of the statute [559] , and whether putting a defendant under strict liability will result in enforcement [560] . 7. It is sufficient to note s 244(3) of the Act. That expressly refers to "mistake of fact". It expressly refers to circumstances where it may be relevant to determining liability. The conclusion is inevitable that honest and reasonable mistake of fact is available to a defendant in a prosecution under the Act. 8. It does not follow that it is available in prosecutions for all offences. The opening words of the subsection make plain that it is not – "If for an offence against this Act mistake of fact is relevant to determining liability …" This plainly suggests that there will be offences for which mistake of fact is relevant and offences for which it is not. 9. For the defence to apply, it must be for an offence where mistake of fact is relevant to determining liability. The prosecutor identified a number of sections where that could be so [561] . They were said to be sections which did not contain a duty to ensure. Some of the sections specified did contain that duty. Others did not. It is, however, sufficient to take one example. Section 41 relevantly provides: A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if: (a) the regulations require the workplace or workplaces in that class of workplace to be authorised, and (b) the workplace is not authorised in accordance with the regulations. 1. If a workplace was authorised pursuant to that section then became unauthorised without reference to the person conducting the business, one can see that honest and reasonable mistake of fact would be relevant in determining liability. 2. I do not think the defence is available to the defendant in this case. I do not think this is a case where mistake of fact is relevant to determining liability. 3. Further, the defendant's belief was not a belief as to an existing state of facts. It was a belief that certain facts would occur or not occur. There were two. They were that: 1. no one "would" use the bucket of the loader for the work platform to work at heights [562] ; and 2. in order to perform the task of suspending the weights underneath the flask nobody was "required" to work at heights [563] . 1. Further, s 19 required the defendant to ensure so far as is reasonably practicable the health and safety of Messrs Pollard and Rowbotham. The facts as to which the defendant claims the requisite belief are set out in the previous paragraph. Subject to reasonable practicability, the defendant was required to ensure those facts. It could not satisfy that obligation by having an honest and reasonable belief that the facts would happen. The obligation was to ensure, so far as reasonably practicable, that the facts happened, not to believe they would. 2. Further, even if the defence is available, there must be a fact or facts which the defendant honestly and reasonably believed to be true. That fact or those facts, if true, must be facts that would exculpate the defendant – Proudman at 540, He Kaw Teh at 534, 573. 3. Even if there was an honest and reasonable belief in these facts, that would not exculpate the defendant. The defendant might have believed that nobody "would" use the bucket as a work platform and might have believed that nobody was "required" to work at heights, but they are not exculpating facts. 4. The duty was in so far as reasonably practicable to ensure. Accordingly, it was to make sure that no one could use the bucket. Nobody asserted they had a belief that Messrs Pollard and Rowbotham could not use the bucket. Likewise, with working at heights. The defendant may have had a belief that Messrs Pollard and Rowbotham were not required to work at height, but nobody asserted a belief that they could not. The issue is not whether they were required to work at heights, but whether they could have. 5. Further, I am satisfied there was no honest and reasonable mistake of fact on the part of the defendant. The first question here is who, on behalf of the defendant, had the belief. It is difficult to see how the defendant could have the requisite belief unless everybody in the planning did so. If anyone of the planners had the belief that the workers could use the bucket as a work platform or could work at heights, the defendant could not be said to hold the requisite belief. 6. It is the reasonableness of the belief that is at issue here. The belief is not reasonable where the defendant's risk assessment process was flawed. It was flawed because the JSA process did not follow the defendant's mandatory and sensible policy and guidelines. It did not address all risks and controls. It did not include all team members. To the extent it included Mr Pollard, it did not cover everything. The JSA was not done at the work site or in a team setting. It was set up for the flaws and cracks in the system that it had. It was not reasonable in those circumstances for the defendant to hold a belief that the workers could or would not undertake the work by using the bucket as a work platform or working at height. 7. Further, the requisite belief is not reasonable in light of Mr Dally's unchallenged evidence. He told Messrs Tavian, Harris, Ridley and Gauci that he wanted the work done from above – that he did not want the workers working in the bucket. Thus, one of the defendant's planners was alert to the possibility it could happen. He put the other planners, and supervisors, on notice. Thus, five of the defendant's planning and supervising personnel were alert to the possibility of the workers not working "from above" and the possibility of working from the bucket. Mr Dally's message was not passed on to the workers. Mr Dally expected it would be. It was a reasonable expectation. After all, there was no point of telling the other planners and supervisors this if it was not to be passed on. In these circumstances, the belief held by the defendant is not reasonable. The four alternate measures 1. I return to the four alternate measures to undertake the task that the prosecutor says the defendant could have undertaken. 2. They were: 1. Removing the un-calibrated load cell and fitting a pre-calibrated load cell (First alternate measure), 2. Removing the un-calibrated load cell and returning it to the Load Cell supplier for it to undertake the recalibration of the Load Cells (Second Alternate Measure), 3. Adding a known weight (mass) of ore into the Flask via a calibrated conveyor weightometer and comparing the readings from the Load Cells to the known weight of ore in the Flask and electronically adjusting the Load Cells (Third Alternate Measure), and 4. An in situ calibration of the Load Cell using a 'test rig load cell' and 'pull down rig' and comparing the readings from the strain gauge processor of the test rig load cell to the display on the RM4 unit of the Load Cell, and electronically adjusting the RM4 unit of the Load Cell (Fourth Alternate Measure). 1. Early in submissions I raised whether I needed to consider the four alternate measures. Apart from an observation by the prosecutor the matter was not pursued at any length. 2. After giving the matter further reflection, I have come to the view that I ought not embark on the four alternate measures. There are several reasons for this. 3. First, I have found the defendant guilty. To embark on a consideration of the four alternate measures would simply be an academic exercise. 4. Secondly, the method chosen by the defendant to calibrate the load cell was to hang a known weight from the bottom of the weigh flask. On the evidence this was one of six recognised methods. There were the four alternate methods the prosecutor relies on in this case. There was also the method of placing a known weight in the weigh flask. On the evidence that would have been impractical in this case. The method chosen was an acceptable method [564] . 5. Thirdly, the principal thrust of the prosecution and the defence of it centred on the system the defendant adopted for calibrating the load cell. The matter should be examined from the position that the method was an appropriate one to choose and determining whether it was carried out by the defendant in conformity with its health and safety duty. 6. Fourthly, the method adopted was capable of being prepared and carried out without risk to workers. It was the defendant's duty to do that so far as reasonably practicable. The fact that it did not do that does not mean that it should not have used that method. The matter stands to be tested on whether or not the defendant complied with or breached its health and safety duty in carrying out the method it chose. 7. Fifthly, I may be wrong in my findings of breach by the defendant. I take an example put forward by the prosecution, which is a possibility, being that a finding of guilt in relation to the lack of a proper risk assessment might be found to be in error [565] , though the observation could apply in relation to any finding. There are three possibilities. The first is that my findings are upheld. In this situation, there is a finding of guilt and no need to consider any of the four alternate measures. The second is that the finding is such that the finding should not have been made and the defendant should have been exonerated. Assuming this applies to all findings of guilt, then the result must be that the defendant be found not guilty and it would be futile to pursue an examination of the alternate methods. If the defendant adopted an acceptable process and did so without breaching its health and safety duty in implementing it, it should not then be exposed to risk of being found guilty in failing to adopt some alternate process which itself might or might not carry greater risks that than the one it employed. The third possibility is that a finding is erroneous because of taking something into account that should not have been, or overlooking something that should have been taken into account, or for some other reason, and the appeal court is unable to determine what the proper finding should be. A consideration of the four alternate methods may allow the appeal court to make a final and dispositive order. The problem with that is that the defendant could fairly claim to be entitled to have the disputed finding properly determined. It should not be found guilty on the basis of available alternative methods when there could be a finding in its favour exonerating it from guilt on the system it did use. CONCLUSION 1. The elements of the offence have been proved beyond reasonable doubt against Perilya Broken Hill Limited in respect of particulars 12 (e), (f), (g); 13 (d), (f), (g); 14 (b); and 15 (a), (b), (c), (d), (e) of the Second Amended Summons. 2. I find Perilya Broken Hill Limited guilty of the offence. 3. I will list the matter for sentence on a date convenient to the parties. ********** Endnotes 1. Exhibit PX 1, Vol 11, Tab 328; T802 2. [10] Second Amended Summons 3. T265.07-.20 4. Exhibit PX 1, Vol 16, Tab 425, p3506 5. Exhibit PX 1, Vol 1, Tab 74 6. T46.03 7. Exhibit PX 3 [14] 8. Exhibit PX 3 [15] 9. T213.09-.12 10. T213.22 11. T218.22-.24 12. T213.29-.31 13. Exhibit PX 3 [12] 14. T268.29-269.26 15. T594.45-595.02 16. T595.04-.10 17. T205.40 18. T395.16-.35 19. T206.34 20. T261.06 – 262.01 21. T264.05; Exhibit PX 1, Vol 1, Tab 6, p12 22. Exhibit PX 1, Vol 1, Tab 6, p12 23. T526.27-.29 24. T263.20 25. T264.10; T265.37-266.10 26. T263.28 27. T507.19-.31 28. T377.21-.28 29. T474.43-.50; Exhibit PX 1, Vol 1, Tab 12 30. Exhibit PX 1, Vol 1, Tab 9 31. Exhibit PX 1, Vol 1, Tab 12 32. T476.37-.42 33. T507.21-510.12 34. T477.37 35. T378.30 36. T380.23, T506.28 37. T380.27 38. T509.10; Exhibit PX 1, Vol 16, Tab 425, p3507 39. T403.06 40. T404.34 41. T396.50 42. T396.47 43. T403.45 44. T397.12-.23 45. T332.26; Exhibit PX 1, Vol 1, Tab 16; Exhibit PX 1, Vol 1, Tab 18 46. Exhibit PX 1, Vol 1, Tabs 17 and 19 47. T209.42 48. T376.16; Exhibit PX 1, Tabs 43 and 44, pp76B and 77B 49. Exhibit PX 1, Vol 1, Tab 50 50. T336.38-.45 51. Exhibit PX 1, Vol 1, Tab 49 52. Exhibit PX 1, Vol 1, Tab 49 53. Exhibit PX 1, Vol 1, Tab 50 54. Exhibit PX 1, Vol 1, Tab 54 55. Exhibit PX 1, Vol 1, Tab 52 56. Exhibit PX 1, Vol 1, Tab 56 57. Exhibit PX 1, Vol 1, Tab 59 58. Exhibit PX 1, Vol 1, Tab 61 59. T163.50 60. T164.10 61. Exhibit PX 1, Vol 1, Tab 61, p102 62. Exhibit PX 1, Vol 1, Tab 63, p104 63. Exhibit PX 1, Vol 1, Tab 59, p100 64. Exhibit PX 1, Vol 1, Tab 68, p116 65. T169.28 66. T480.28 67. T481.07 68. T526.29-527.34; Exhibit PX 1, Vol 2, Tabs 77, 78 69. T526.29 70. T481.14-.33 71. T528.44, T384.47-385.27 72. T591.40 73. T592.28, T385.35 74. T529.30, T592.11 75. T386.48 76. T530.24-.50 77. T591.04-.29 78. T529.43-.49 79. T529.41 80. T530.45 81. T385.50; Exhibit PX 1, Vol 2, Tab 79, p205 82. T343.40-.50; Exhibit 1, Vol 2, Tab 79 83. T386.39 84. T221.18 85. Exhibit PX 3 [26] 86. Exhibit PX 3 [25] 87. T484.22-.33 88. [80] 89. T533.42-.49 90. T350.01-.12 91. T350.21-.22 92. T535.20-.22 93. Exhibit PX 3 [28] 94. T410.32-.35 95. T410.40-.43 96. T626.06 97. T625.39-.49, T626.01-.05 98. T625.46-626.40 99. T626.14-.18 100. T482.46-.49 101. T483.47-.50 102. T483.1-2; Exhibit PX 1, Vol 2, Tab 84, p0210 103. T362. 49-.50, T363.02-.07 104. Exhibit PX 3 [29] 105. T412.36 106. T413.12 107. T413.45; Exhibit PX 1, Vol 2, Tab 86, p0213 108. T346.39 109. T414.26, T415.43–.50 110. T417.41 –.46 111. T418.09-.12 112. T222.48 113. T224.33-228 114. T228.47-229.03, T387.43, T532.26 115. T229.17-.30 116. Exhibit PX 3 [30] 117. T389.22 118. T353.22-.32 119. T354.05-.19 120. T419.05, 419.39 121. T464.14-465.16 122. T354.21-.41 123. Exhibit PX 1, Vol 1, Tab 12; T468.44 124. Exhibit PX 1, Vol 2, Tab 86; T486.28 125. Exhibit PX 1, Vol 2, Tab 79 126. T521.25-.30 127. T419.38-.39 128. T422.16-.18 129. T521.30 130. T492.01-.08 131. [102] 132. T1104.10-1115 133. Exhibit PX 1, Vol 2, Tab 79 134. T997.48 135. T983.27 136. T984.05 137. T986.05 138. T984.07-.27 139. T989.18-.44 140. "Tavian XN T351 L19-27." 141. "Tavian XN T352 L3- 33." 142. "Tavian XN T352 L5 – 23". 143. "Tavian XN T352 L35 – 38." 144. "Tavian XN T352 L44-46." 145. "Tavian XN T353 L22 – 35; T390 L30-37." 146. "Tavian XXN T390 L10 – 25." 147. "Harris XN T421 L38." 148. T492.32-.49 149. T493.10-.29 150. T517.16-518.14 151. T522.06-.22 152. T353.22-.32 153. T421.33-.39, T422.13-.18 154. T518.14 155. T422.14, T472.17 156. Exhibit PX 1, Vol 2, Tab 86; T486.42 157. T486.46 158. T493.44-.46 159. T424.43 160. T424.48 161. T393.12 162. T393.19 163. Exhibit PX 3 [32] 164. T351.46 165. Exhibit PX 3 [33] 166. T309.22 167. T309.22 168. T309.41 169. T309.30-.32 170. T310.05 171. Exhibit PX 20 172. T322.14 173. T355.26 174. T311.06 175. Exhibit PX 1, Vol 2, Tab 96 176. T536.42 177. T536.49-.50-537.01 178. T537.46 179. T538.15 180. T719.50-720.02 181. T720.06 182. T720.09-.11 183. T720.19 184. T538.22 185. T650.43-.46 186. T539.35-540.02 187. Exhibit PX 3 [43], [44] 188. T651.33; T996.04 189. T663.22-.28, T998.10-.18 190. T996.20-.50 191. T727.30-.42 192. T544.22 193. T996.20-.50 194. T544.36 195. T651.47 196. T544.44-.48 197. T892.12, T1123.07 198. T606.44 199. T545.45 200. T546.02 201. T546.30 202. T652.29 203. T546.45 204. T547.07 205. T855.40 206. T1123.50-1124.15 207. T1150.13 208. T1150.21 209. T1001.01-.03 210. T1003.01-.42 211. T1204. 30-.32 212. T547.38; Exhibit PX 1, Vol 1, Tab 1 213. Exhibit PX 3 [51] 214. T548.19-.20 215. T548.34-.36, T1001.31-.38, T1001.49-.50 216. T548.42-.48 217. T577.50-578.02 218. T578.07 219. T578.10 220. T576.42 221. T577.01 222. T576.42, T576.48-577.01 223. T548.28-.29 224. Exhibit PX 1, Vol 1, Tab 2 225. Exhibit PX 3 [52] 226. Exhibit PX 3 [55] 227. T1005.18 228. T1010.07 229. T1002.27 230. T1002.50 231. T1004.08 232. T1004.25 233. T654.22.-.28 234. T652.21 235. T655.16-.38, T1006 236. T655.16-.24 237. T665.34 238. T1006.14-.24 239. T744.25-745.25 240. T745.06, T747.27 241. T745.16 T747.32 242. T747.44 243. T748.23-.37 244. T750.28-.32 245. T800.20-.37 246. T798.35 247. T1097.36 248. NSW Government Trade & Investment, Mine Safety 249. T1097.47-1098.04 250. T1000.47-1001.03 251. T810.25 252. T810.50-811.02 253. T811.05-.23 254. T1006.38-1007.14 255. T1007.30-.48 256. T1154.22-.28 257. T813.40 258. T901.11-.13 259. T812.45-814.20, T1007.29-1008.01 260. T894.45 261. T832.04-.13 262. Exhibit PX 3 [56] 263. T661.37, T1025.47, T1156.20 264. Exhibit PX 3 [57] 265. Exhibit PX 1, Vol 1, Tab 2 266. T1028.29 267. T1163.13 268. T770.03 269. T1626.15 270. T816.05-.11 271. T773.41 the reference to Mr Pollard in the transcript there should be a reference to Mr Rowbotham 272. T822.01-823.09 273. T827.50-820.19 274. T828.25-.28 275. T825.29, .32 276. T943.19-944.24 277. Exhibit PX 7 [22] 278. Exhibit PX 7 [41], Exhibit PX 1, Vol 16, Tab 431 279. Exhibit PX 7 [43] 280. T1514.26 281. Exhibit PX 7 [44] 282. Exhibit PX 7 [45] 283. Exhibit PX 7 [46] 284. Exhibit PX 7 [47], Exhibit PX 1, Vol 2, Tab 88 285. Exhibit PX 7 [48], Exhibit PX 1, Vol 16, Tab 431 286. Exhibit PX 7 [50] 287. T1514.44 288. Exhibit PX 1, Vol 4, Tab 148, pp0650-0653 289. T1787.23 290. T1787.37 291. T840.07 292. Exhibit PX 1, Vol 9, Tab 239, p1498 [67], [68]; p1503 [95] 293. T2101.32 294. T647.06-.48 295. [198] 296. T229.17-.30; [105] 297. T647.06-.49; [199] 298. Exhibit PX 1, Vol 5, Tab 152 299. Exhibit PX 1, Vol 5, Tab 153 300. Exhibit PX 1, Vol 5, Tab 154 301. Exhibit PX 1, Vol 5, Tab 155 302. Exhibit PX 1, Vol 5, Tab 156 303. Exhibit PX 1, Vol 5, Tab 157 304. Exhibit PX 1, Vol 5, Tab 158 305. Exhibit PX 1, Vol 5, Tab 159 306. Exhibit PX 1, Vol 5, Tab 160 307. Exhibit PX 1, Vol 5, Tab 161 308. Exhibit PX 1, Vol 5, Tab 162, Tab 164 309. Exhibit 1DX 1 310. Exhibit PX 1, Vol 5, Tab 155, p0730 311. Exhibit PX 1, Vol 5, Tab 158, p0790 312. Defendant's submissions [142] 313. Exhibit PX 1, Vol 5, Tab 155, pp0724-0725 314. Exhibit PX 1, Vol 5, Tab 155, p0725, 0727 315. Exhibit PX 1, Vol 5, Tab155, p0727 316. Exhibit PX 1, Vol 5, Tab 159, p0794 317. Exhibit 1DX 6, Exhibit 1DX 7 318. Exhibit 1DX 9 319. T715.05 320. Exhibit 1DX 19, Tab 9 321. T947.10 322. T641.45, T1471.36 323. T641.43 324. T641.47 325. T268.07-.18, T606.42-607.05, T641.47-642.05 326. T1139.24 327. Exhibit PX 1, Vol 5, Tab 160, p0808 328. Exhibit PX 1, Vol 5, Tab 164, p0882 329. T644.31-.34 330. T182.36 331. T465.37 332. T467.11, T645.22 333. T510.24 334. Exhibit PX1, Vol 11, Tab 314 335. T247.07-248.41, T450-451, T503.17-.48, T636.22-.42 336. T450.07 – .16, 503.34 – .49, T585.23-.25 337. T248.28, T450.01 338. T247.38-248.10, T450.16, T503, T584.47-585.25, T586.30-587.43, T616.03-.30, T969-983 339. T450-451 340. T425.16, T426.12, T428.46 341. "A summary of Mr Pollard's training is located at PX1 V11 Tab 294 p2185-93 and documents related to his training at PX1 V11 Tabs 300 -322 and 1DX14. A summary of Mr Rowbotham's training is located at PX1 V11 Tab 323 p2310-2316 and documents related to his training at PX1 V11 Tabs 328 -340." - Defendant's submissions [186]; Exhibit 1DX12 342. Exhibit 1DX 14, Tabs 1, 4 343. Exhibit PX 1, Vol 11, Tabs 300, 302 344. Exhibit PX 1, Vol 11, Tab 316; T974 345. Exhibit PX 1, Vol 11, Tab 310 346. Exhibit PX 1, Vol 11, Tab 310, p2266 347. Exhibit PX 1, Vol 11, Tab 312 348. p2279 349. Exhibit PX 1, Vol 11, Tab 305; T979.44-980.01 350. Exhibit PX 1, Vol 5, Tab 291, p2167 351. T979 352. Exhibit 1DX 14, Tab 12, p546; Tab 11, pp524-526 353. Exhibit 1DX 14, Tab 13 354. Exhibit PX 1, Vol 11, Tab 328 355. Exhibit PX 1, Vol 11, Tab 330 356. Exhibit 1DX 12, Tab 4B, p621 357. p622 358. Exhibit 1DX 12, Tab 5, pp643-5, p665 359. Exhibit 1DX 12, Tab 2A 360. p103 361. p111 362. Exhibit 1DX 12, Tab 2C, p286 363. p337 364. Exhibit 1DX 12, Tab 3 365. T629.45 - 630.02, T835.08-.50, T846.15-.40 366. T249.04-.27 367. T249.12, T249.32 368. T182.13, T365.15, T434.05-.07 369. T184.45 370. T675.03-.14 371. T835.40-.50, T836.01-.25 372. T1095.43–1096.07 373. T249.37, T585.37 374. T183.49 375. T1090.41 376. T1092.08-1094 377. T779, T792, T1778.49; Exhibit PX 13, Exhibit PX 16, Exhibit PX 17 378. Exhibit PX 13 379. T247.26 380. T1072.45 381. T757.01-.11 382. T229.02; [105] 383. T229.05-.15 384. [199] 385. T423.38, T456.42, T545.33 386. T604.18 387. T187.19 388. T189.18 389. T187.48 390. T188.02 391. (1995) 100 IR 248 392. at 257 393. [1999] NSWIRComm 453 394. [2001] NSWIRComm 267 395. (2001) 105 IR 81 396. [2001] NSWIRComm 31 [15] 397. [46] 398. [48] 399. [2016] NSWDC 58 400. [29] 401. [30] 402. [31] 403. [32] 404. [3] 405. [105]; T627.50-628.15 406. T248.14, T557.12, T636.10 407. [120] 408. [121] 409. T261.47-262.18 410. [135] 411. T2069.06, .13 412. [2016] NSWCCA 37 413. [12] to [15] of the Second Amended Summons 414. [511] to [519] 415. Prosecutor's submissions 9.7 416. Exhibit PX 1, Vol 5, Tab 164, pp856-7 417. Exhibit PX 1, Vol 9, Tab 239, p1619, [529]-[534] 418. T264.10, T472.20 419. [277(9)] 420. Exhibit PX 1, Vol 9, Tab 239, p1620 [536] 421. Exhibit PX 1, Vol 9, Tab 239, p1620 [538] 422. Exhibit PX 1, Vol 9, Tab 239, p1620 423. T1969.42-1970.34; Exhibit PX 1, Vol 12, Tab 362, p2529; Exhibit PX 1, Vol 12, Tab 370, p2693 424. T1693.32-1694.28 425. [194d.] Defendant's submissions 426. Exhibit PX 1, Vol 8, Tab 231, p1400 427. T1571.34-1572.12, T1689.20 428. T1567.23; Exhibit PX 1, Vol 16, Tab 434, p3620; Exhibit PX 1, Vol 8, Tab 230, p1389a30 429. T1638.10-.12 430. T1638.38-.40 431. T1580.45-1581.01 432. T1340.38 433. T1340.38-.44 434. T1587.11 435. Exhibit PX 8 436. T1680.02-.08 437. T1563.05 438. Exhibit PX 1, Vol 8, Tab 230, p1389a42 439. T1391.11-.16 440. Exhibit PX 1, Vol 8, p1389a48; T1631.12 441. T1631.26-.29 442. T1632.21 443. T1632.30 444. T1632.35 445. T1632.45 446. T1634.09 447. T1572.49 448. T1573.09 449. T1573.15 450. T1611.18-.23 451. T1573.14-.15 452. T1573.18-.19 453. Exhibit PX 1, Vol 8, Tab 230, pp1389a62, 63, 66, 67 454. Exhibit PX 1, Vol 8, Tab 230, p1386, p1389a64, p1389a65 455. Exhibit PX 1, Vol 8, Tab 230, p1386, p1389a65 456. Exhibit PX 1, Vol 8, Tab 230, p1386, p1389a64, p1389a65 457. T1576.06; Exhibit PX 1, Vol 16, Tab 434, p3603 458. T1576.10 459. T1576.12-.32 460. T1578.28-.30 461. T1614.09 462. T1614.35 463. T1615.33, T1616.10 464. T1616.25 465. T1622.05-.28 466. T1565.15 467. T1565.22 468. T1636.16-.26 469. Exhibit PX 1, Vol 8, Tab 230, p1389a35, p1389a50 470. Exhibit PX 1, Vol 8, Tab 230, p 1386 471. Exhibit PX 1, Vol 8, Tab 230, p1389a55, pp1389a70-76 472. T1590.06 473. T1560.37 474. T1566.32-.50 475. T1567.07 476. T1639.20, 1680.46-1681.11 477. T1640.47 478. T1640.15-.48 479. T952.12-.22 480. T1027.22 481. T1026.17 482. T1787.37 483. T1787.42-3 484. T1787.43 485. T1787.43 486. T1787.44 487. T1787.44 488. T1791.37-.38 489. T1788.26-.29 490. T1788.38-.42 491. T1789.18-.46 492. T1012.20, T1013.06 493. T1027.24-.48 494. T1191.01-.09 495. T1700.26 496. T1945.01-.14 497. Exhibit PX 1, Vol 5, Tab 155 498. Exhibit PX 1, Vol 5, Tab 158, p0790 499. [202] to [208] 500. [105] 501. T757.09-.11 502. Exhibit 1DX 1 503. T1030.50-1031.02 504. T1030.24-.33, T1031.01-.02 505. T837.30 - T838.16 506. T757.09-.11 507. T1197.09-1198-.07 508. T1192.05-1193.06 509. Aid [sic] Memoire 28 June 2017, Second Amended Summons, p12 510. Aid [sic] Memoire – 28 June 2017 511. T975.04-976.15 512. [191] and [331] 513. [190] 514. 9.356-9.365 515. T637.03-.06 516. Exhibit PX 1, Vol 5, Tab 162, p0833; and Tab 164, 0858 517. Exhibit PX 1, Vol 5, Tab 154, p703 518. Exhibit PX 1, Tab 154, p706 519. T1509.44-.50 520. Exhibit PX 1, Vol 5, Tab 154, p 0708 521. Exhibit PX 1, Vol 5, Tab 164, p0856 522. Exhibit PX 1, Vol 5, Tab 164, p0858 523. Exhibit PX 1, Vol 5, Tab 164, p0860 524. Exhibit PX 1, Vol 5, Tab 164, pp863-4 525. Exhibit PX 1, Vol 5, Tab 164, p0867 526. T427.29-428.36 527. T429.01-.08 528. T429.36 529. T1001. 31-1002.17, T548.34-.40 530. T1509.41-1510.29 531. T1509.39 532. T1510.22 533. T1510.25-.26 534. T1501.08-1507.25 535. T1507.29 536. Exhibit PX 1, Vol 5, Tab 164, p0867 537. T627.10 538. T627.15 539. T627.15-.20 540. T627.50-628.15 541. T626.14-.40 542. T522.32 543. [112] 544. [112] 545. T522.34-.41 546. T461–463.18 547. T548.20 548. T584.06 549. T239.10-.40 550. T959.06-.15 551. Exhibit 1DX 10 552. Exhibit 1DX 14, Tab 13, p563 553. T1029.01-.38 554. T1182.07-.19 555. (1941) 67 CLR 536, 540-1 556. (1985) 157 CLR 523, 528, 529-530, 531-2, 533, 534-5, 562-3, 592-3 557. [2008] NSWIRComm 153 [237], [253]-[255] 558. He Kaw Teh at 529 559. He Kaw Teh at 529 560. He Kaw Teh at 530 561. T2213.34-.35 562. T2095.02-.03 563. T2095.04-.06 564. T624.25-.34; Exhibit PX 1, Vol 9, Tab 239, p1527 [199] 565. T2038.40 Amendments 05 December 2018 - paragraph order corrected and images added 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: 05 December 2018