District Court New South Wales Medium Neutral Citation: Orr v LakeCoal Pty Ltd (In Liquidation) (No. 2) [2019] NSWDC 360 Hearing dates: 3, 4 June 2019 Date of orders: 26 July 2019 Decision date: 26 July 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements of the offence set out in the Amended Summons filed on 3 June 2019 have been proved beyond a reasonable doubt. (2) The defendant is guilty of the offence. (3) The matter will be listed for sentence on a date suitable to the prosecutor. (4) Direct the prosecutor to notify the liquidator of the defendant of these orders and to supply to the liquidator a copy of this judgment. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known OTHER – vehicles in underground coal mine made contact with roof of roadway, causing fracture of W-strap – broken W-Strap made contact with canopy of vehicle, entering operator cabin space causing serious injury to worker – need for audit of roadways to assess operational roof clearance of vehicle over road surfaces – need to train workers to report damage to roofs or W-Straps Legislation Cited: Coal Mine Health and Safety Regulation 2006 (NSW) Corporations Act 2001 (Cth) Criminal Procedure Act 1986 Evidence Act 1995 (NSW) Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) Work Health and Safety (Mines) Act 2013 (NSW) Work Health and Safety (Mines) Regulation 2014 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 Houghton v Arms (2006) 225 CLR 553 Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326 Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 Orr v LakeCoal Pty Limited [2019] NSWDC 178 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Royall v The Queen (1991) 172 CLR 378 SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295 Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Limited v Industrial Court of New South Wales [2010] 78 NSWLR 94 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Walplan Pty Limited v Wallace (1985) 8 FCR 27 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of NSW v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] 135 IR 166 Texts Cited: Ground Engineering, Principles and Practices for Underground Coal Mining Managing road and vehicle operating areas in underground coal mines - MDG-1009 Mineral Industry Safety and Health Risk Management Guideline - MDG-1010 Mobile Transportable Equipment for Use in Mines – MDG-15 Category: Principal judgment Parties: Stephen James Orr (Prosecutor) LakeCoal Pty Ltd (In Liquidation) (Defendant) Representation: Counsel: K Nomchong SC with E Kerkyasharian (Prosecutor) Solicitors: Lander & Rogers (Prosecutor) File Number(s): 2018/23681 table of contents Introduction The Elements of the Offence The Relevant Law Structure and Sources of this Judgment Introduction and Evidentiary Matters The Prosecutor The Defendant Mining Operations Underground Roadways at the Mine Underground Mobile Plant The Defendant Engaged Workers Ben Pedersen Defendant – A PCBU that owed workers a health and safety duty Incident – 22 January 2016 The location of the Incident The Incident The Mechanism of the Damage to the W-Strap The Investigation The Charge General Principles The Charge The Nature of the Primary Duty Exposure to Risk Reasonably Practicable Measures The Safety System at the Mine Instruction and Training at the Mine Foreseeability of the Risk Departmental Guidelines Industry Publications The Defendant's WRACs Tangible Evidence of Risk Conclusion as to Foreseeability Exposure to the Risk Systems Charge PMHMP An audit of the roadways (followed by refusal of access to vehicles and remedial action if required) Reasonably Practicable Causal Nexus Training and Instruction Charge Reasonably Practicable Causal Nexus Conclusion and Orders Judgment Introduction 1. By an Amended Summons filed on 3 June 2019 the prosecutor charged LakeCoal Pty Limited (the defendant) with a breach of the Work Health and Safety Act 2011 (NSW) (the WHS Act). The Amended Summons pleaded that the defendant was a person conducting a business or undertaking at Mannering Colliery at Doyalson in the State of New South Wales, who had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of workers engaged or caused to be engaged by it and/or workers whose activities in carrying out work were influenced or directed by the defendant. In particular, it was pleaded that Mr Benjamin Pedersen, while he was at work in the defendant's business or undertaking, was exposed to the risk of death or serious injury, contrary to s 32 of the WHS Act. 2. The defendant is in liquidation. In an earlier judgment I found that the prosecutor did not need leave to continue the prosecution, notwithstanding the liquidation of the defendant – Orr v LakeCoal Pty Limited [2019] NSWDC 178. 3. The trial was conducted on 3 and 4 June 2019 on an undefended basis. Senior and junior counsel appeared for the prosecutor. There was no appearance for the defendant. The court was informed that the liquidator had been made aware of the hearing and did not wish to appear, but wanted to be kept informed concerning the course of proceedings. 4. The prosecutor tendered 12 large lever-arch folders of documents, which were marked as PX1 to PX12 inclusive. The prosecutor called the following witnesses: Mr Benjamin Andrew Pedersen, Mr Robbie Taylor, Mr Michael Roughan, Mr Peter Charles McConville and Mr Quinten David McClintock. All of those witnesses gave evidence largely by adopting detailed statements previously taken by investigators. The Elements of the Offence 1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence. It is for the prosecution to prove the guilt of the defendant, and prove it beyond reasonable doubt. 2. Section 32 of the WHS Act provides: "A person commits a Category 2 offence if; the person has a health and safety duty, and (a) the person fails to comply with that duty, and (b) the failure exposes an individual to a risk of death or serious injury or illness." 1. The elements of the s 19 offence are: Element 1 The defendant was conducting a business or undertaking; Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of: (i) workers engaged by it or workers whose activities are influenced or directed by the defendant; (ii) while the workers were at work in the business or undertaking; Element 3 The defendant failed to comply with its health and safety duty; and Element 4 The failure exposed an individual to a risk of death or serious injury. The Relevant Law 1. The objects clause in s 3 of the WHS Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by; (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection 19(1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable." 1. The offence is one of strict liability: s 12A of the WHS Act. 2. The content of the duty is set out in s 19 of the WHS Act that 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. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subs (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 … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances; 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. The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470. 2. The meaning of "worker" is dealt with by s 7(1) of the WHS Act which provides: "A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee, or (b) a contractor or sub-contractor, or (c) an employee of a contractor or sub-contractor, or (d) ..." 1. A duty provided for by the WHS Act is not transferrable: s 14 of the WHS Act. Section 16 of the WHS Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person: (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity." 1. Section 17 of the WHS Act deals with management of risks and 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. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the WHS Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury. 2. The word "risk" is not defined in the WHS Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Limited v Industrial Court of New South Wales [2010] 78 NSWLR 94 at [67]. 3. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015. 4. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once. 5. "Reasonably practicable" is defined in s 18 of the WHS Act which 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 the relevant matters including: (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows or ought reasonably to know about; (i) 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. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 at [33]. 2. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ. 3. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak v Lurgi (Aust) Pty Ltd. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]. 4. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J. 5. The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment, does not without more demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ. 6. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 7. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Limited (1998) 82 IR 80 at 85; Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 at [32]. 8. A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. 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: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. 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. 9. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore it was not reasonably practical to guard against it: WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] 135 IR 166 at [129]. 10. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]. 11. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378. 12. Regard must be had to the scope and objects of the WHS Act: Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground at [130]. 13. Section 275 of the WHS Act provides that an approved code of practice is admissible in proceedings for an offence against the WHS Act as evidence of whether a duty under the WHS Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine was is reasonably practicable in the circumstances to which the code relates. 14. Part 13 of the WHS Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 provides: "Imputing Conduct to Bodies Corporate (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." 1. Section 244(1) is a deeming provision that has the effect of facilitating proof of the responsibility of a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Limited v Wallace (1985) 8 FCR 27 at 38; Houghton v Arms (2006) 225 CLR 553 at [37]-[38]. The words "engage in conduct" are defined to include an omission: s 4 of the WHS Act. Structure and Sources of this Judgment 1. At the conclusion of the evidence and short oral submissions, the proceedings were adjourned to enable the prosecutor to prepare written submissions. I have been greatly assisted by the written submissions of senior and junior counsel for the prosecutor, and what follows in this judgment is based almost entirely on those written submissions. The detailed references to evidence which follow are the result of the assiduous preparation of senior and junior counsel for the prosecutor, and their instructing solicitors. Introduction and Evidentiary Matters 1. The defendant is charged with a breach of s.32 of the WHS Act 2011 (NSW) in respect of a failure to comply with a duty under s 19(1) of the WHS Act on 22 January 2016. The prosecutor moves on the Amended Summons for which leave was granted to file in Court on 3 June 2016. 2. As at 22 January 2016, the applicable legislation was: 1. WHS Act; 2. Work Health and Safety Regulation 2011 (NSW); [1] (WHS Regs) 3. Work Health and Safety (Mines) Act 2013 (NSW); [2] (Mines Act) 4. Work Health and Safety (Mines) Regulation 2014 (NSW) [3] (Mines Reg) 1. A Prosecutor's Chronology [4] and a Summary of Key Individuals [5] were handed up as aide-memoires to assist the Court. 2. The defendant is in liquidation. On 16 May 2019 this Court found that the prosecutor does not need leave to continue the prosecution notwithstanding that fact. [6] 3. The trial was conducted on an undefended basis. As such, the Court is required to make findings of fact on each relevant issue and determine every legal issue. 4. Notices were issued pursuant to s 155 of the WHS Act on the defendant and also on third parties. [7] 5. In relation to the Notices issued on the defendant, the responses to them [8] amount to admissions by the defendant within the meaning of s 87 of the Evidence Act 1995 (NSW). 6. Further, the Court accepts that the evidence of Mr Haberecht, Mr McConville and Mr Walker contains admissions made with authority within the meaning of s 87 of the Evidence Act. 7. In addition, and significantly, the content of the internal investigation report undertaken by the defendant [9] also contains admissions and to the extent necessary they are relied upon as such by the prosecutor. [10] 8. Three s 155 Notices were issued on LD Operations Pty Ltd (LDO). [11] As was stated in the opening submissions and as is clear from the evidence, LDO and the defendant worked collectively and collaboratively in conducting the operations of the Mannering Colliery (Mine). They also worked within a group of companies known as the LDO Group. 9. The responses by LDO to the s 155 Notices issued upon it [12] were included in the evidence as part of the prosecutor's duty in an ex parte hearing, which includes putting the complete details of the investigation conducted, before the Court. However, where information or documents produced by LDO have been relied upon, the prosecutor has either proved that evidence through witnesses, or has established their provenance though the Affidavit of Adam Battagello dated 6 June 2019 [13] . The prosecutor relies on them as business records. [14] The Prosecutor 1. The prosecutor, Stephen James Orr, is a government official (investigator) appointed under section 18(2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) (WHSMP Act), and: 1. is, by virtue of section 18(8) of the WHSMP Act, an inspector for the purposes of the WHS Act; and 2. has written authorisation of the Regulator under Schedule 2 of the WHS Act, and is thereby authorised under s 230(1)(b) of the WHS Act to bring these proceedings. [15] 1. The Court finds that the prosecutor is an authorised person to bring these proceedings. The Defendant 1. The Court finds that, at all material times, the defendant was a body corporate, with its registered office situated at Ruttleys Road Corner Construction Road, Mannering Park NSW 2259. [16] 2. At all material times, the defendant and LDO were part of a group of companies known as the LDO Group: 1. the ultimate holding company and sole shareholder of the defendant as at 22 January 2016 was LDO Coal Pty Ltd; [17] 2. the former ultimate holding company and current major shareholder of LDO Coal Pty Limited is LDO (the defendant in a related prosecution); [18] 3. the directors of LDO as at 22 January 2016 included Peter Keith Ross and Peter Haberecht; [19] and 4. the sole shareholder of LDO is LD Operations Holdings Pty Ltd whose directors as at 22 January 2016 were also Peter Ross and Peter Haberecht. [20] 1. The internal management of the Mine as at 22 January 2016 by the officers and employees of the defendant is set out in an internal managerial chart. [21] 2. As at 22 January 2016, Mr David Walker, the Mining Engineering Manager at the Mine, had a dual reporting function whereby he reported to the Boards of both the defendant and LDO. He reported to LDO through Mr McConnell, who had become the Manager of Mining Operations [22] . Mr McConnell then reported to Peter Ross, Managing Director of LDO [23] . He also reported to the Board of the defendant. [24] 3. Board members from both the defendant and LDO would frequently attend the Mine and inspect the operations. [25] Mr Walker said that one director in particular, Peter Ross, spent a good deal of time at the Mine, including underground. [26] Another director, Brian Clifford attended the site although less frequently and did not go underground as much. [27] One director of LDO, Mr Peter Haberecht was employed as the Mechanical Engineer at the Mine as at 22 January 2016. [28] 4. Mr Haberecht's view was that as at 22 January 2016, members of the LDO Board were involved in the operations of the Mine on an almost day to day basis. [29] 5. Mr Walker believed, but was somewhat unsure, as to whether the defendant controlled the financial activities of the Mine. [30] He said that he believed the defendant had day to day control of the Mine and was responsible for approving funds for the work done. [31] Even if that was not the case, the fact that he was of that view and that there was some confusion about the fact, shows how intertwined the companies were. Ultimately it is clear that the defendant and LDO operated under the auspices of the LDO Group and acted collaboratively and collectively in operating the Mine. 6. On 3 October 2018, administrators were appointed to the defendant. [32] 7. On 5 March 2019, the creditors of the defendant (under administration) resolved that the defendant be wound up pursuant to s 439C(c) of the Corporations Act 2001 (Cth). [33] 8. On 12 April 2019, solicitors for the prosecutor confirmed with the Australian Securities and Investments Commission (ASIC) that there was no deregistration process currently on foot for the defendant. [34] Mining Operations 1. The charge relates to the Mine (Mannering Colliery), which is a small underground thermal coal mine. It is located at Ruttleys Road, Mannering Park, on the southern side of Lake Macquarie in the State of New South Wales. [35] Mannering Colliery is adjacent to the Chain Valley Colliery, of which the defendant is also the statutory mine operator. [36] 2. The location of the Mine can be seen from an enlarged aerial photograph. [37] 3. Development of the Mine began in 1960 in conjunction with the construction of the Vales Point Power Station. [38] Operations at the Mine commenced in approximately 1961. [39] 4. An explanation of the history and development of the Mine is contained in the Annual Review, a document prepared by Mr David Walker, Manager of Mining Engineering, on 30 April 2016. [40] 5. On 30 June 2002, the Mine was placed into "care and maintenance" (First Care and Maintenance Phase). [41] 6. "Care and maintenance" describes a state of operations at a mine site where there is no activity to mine ore or material but the mine is maintained. Activity at a mine on care and maintenance is generally limited to monitoring the mine and undertaking maintenance activities to ensure that the mine remains in a safe, stable state. The purpose of this is to allow companies to recommence mining if the economic viability of the mine improves in the future. 7. On 7 August 2002, Centennial Mannering Pty Ltd (Centennial) acquired the relevant coal leases being Consolidated Coal Leases part 707, 719, part 720, 721, part 722 and part Mining Lease 1052 and became the mine holder. Centennial recommenced production in January 2005. 8. In December 2012, Centennial placed the Mine into "care and maintenance" (Second Care and Maintenance Phase). 9. On 14 December 2012, a meeting took place in which the Department of Industry & Investment [42] (Department) established conditions for the Second Care & Maintenance Phase. [43] Notably, one condition was a mine inspection plan to ensure that all roadways were maintained in a fit state. [44] On 18 December 2012 the Department confirmed the Care & Maintenance phase and in so doing confirmed that the provisions of the WHS Act & Regs continued to apply to the Mine. [45] 10. On 17 October 2013, Centennial nominated the defendant as the statutory mine operator of the Mine, specifically the abovementioned Consolidated Coal Leases. [46] 11. On 2 October 2014, an application to sublease the Mine to the Chain Valley Colliery was approved. The defendant was a named sublessee (together with Fassi Coal Pty Ltd). [47] 12. Whilst the Mine was in the Second Care and Maintenance Phase, there were limited workers on site. Between May 2014 and December 2015 these included: 1. the mine manager (mining engineering manager); 2. two deputies (who were job sharing); 3. two tradesmen; and 4. one engineer. [48] 1. The work activity during the Second Care and Maintenance Phase was limited to work on Mondays to Fridays, which included one underground shift involving: 1. inspections of the roof and roadway conditions by a mine deputy; [49] 2. inspections and maintenance of the pumping systems; and 3. occasional running of conveyor belts to ensure they were operational and if not, to undertake repairs. [50] 1. In late 2014 and through 2015 a number of modifications to the Mine's planning approval were made including a decision that would permit an underground link road to be progressed between the Mannering Colliery and Chain Valley Colliery (Link Road) as well as to increase the maximum rate of run of the Mine. [51] 2. In about December 2015, the defendant made a decision to progress the Link Road. [52] 3. The Mine began transitioning from the Second Care and Maintenance Phase in January 2016 with the expectation of commencing full mining operations in about March 2016 (Transition Period). [53] 4. As early as 4 January 2016, activity at the Mine was described by Mr Peter Haberecht as "very hectic" and as a "very busy time" during which new employees were being engaged and new equipment was being organised. [54] Mr Haberecht gave evidence that between December 2015 and 22 January 2016, personnel and equipment were being brought into the Mine for the purposes of starting up operations, particularly in relation to the Link Road Project. [55] 5. The defendant lodged notification of the recommencement of normal mining operations at the Mine in March 2016. [56] 6. By reason of the above matters, the Court finds that as at 22 January 2016, the defendant: 1. was the statutory mine operator of the Mine pursuant to s 7A of the Mines Act; [57] and 2. was engaged in "mining activities" within the meaning of s 7 of the Mines Act during the Transition Period and, in particular as at 22 January 2016, because its activities were: 3. activities carried out in connection with mining activities at a site within the meaning of s 7(1)(b) of the Mines Act; and/or 4. activities associating with "making safe" an extraction site within the meaning of s 7(2)(d) of the Mines Act; Underground Roadways at the Mine 1. At all material times, the roadways in the Mine: 1. were subject to "floor heave" [58] , which is a term used to describe the deformation of the floor of a roadway (upwards towards the roof) due to the stresses being transferred from above, via the walls of the roadway or roof supports; 2. had floor and roof surfaces that were uneven with varying gradients. [59] On 27 January 2016, the roadway of the Incident site was surveyed. Visualisations of that survey have been prepared by an expert surveyor, Martin Burns, from which the undulating surface of the roadway floor and roof are evident; [60] 3. could be maintained at design height by removing or cutting out layers of floor material in the roadways. [61] 1. As will be dealt with in more detail below, Centennial had developed an Underground Transport Management Plan (UTMP). [62] It had been utilised by the defendant up to and including 22 January 2016. [63] It indicated amongst other things: 1. The roadways in the Mine through which man transports were to travel had been designed with dimensions of at least 3.5m wide and 1.9m high; [64] and 2. Main travelling roads are maintained as required; [65] 1. At all material times, the roadways in the Mine had a roof support system which included metal, crimped straps which were attached to the roof using roof bolts (W-Straps) [66] and : 1. the W-Straps were made from steel [67] and were designed to generally conform to the profile of the roadway roof when bolted in place; [68] 2. the W-Straps had been affixed to the roof of the roadways utilising roof bolts [69] and had been installed at regular intervals of between 1 to 1.5 metres apart, perpendicular to the direction of the roadway; [70] and 3. many of the W-Straps had been observed to have been damaged in that they had buckled and contorted; [71] or were rusted, broken and damaged by machinery. [72] Underground Mobile Plant 1. The vehicles utilised at the Mine during the Second Care and Maintenance Phase included: [73] 1. an EIMCO 913 Load Haul Dump machine designated as LHD-031 (LHD-031) with a measured height of 1790mm [74] ; and 2. a PJB Minecruiser Mark 6 personnel transport vehicle designated PJB-2545 (PJB-2545) with a measured height of 1750mm; [75] 1. The LHD-031 had been inherited from Centennial. [76] Whilst the LHD-031 had a canopy over the operator's seat, the sides of the cabin were open. [77] This left the operator vulnerable to the intrusion of objects into the operator's cabin. This is visible in the photograph at PX4, Tab 58.76, where an inspector is sitting in the operator's seat sideways to the direction of travel, with his face clearly open to the mine roadway. 2. Similarly, the PJB-2545, whilst it had a front windscreen, had no window or guard at the sides of the operator's cabin. [78] Further, whilst seating areas for the passengers in the rear of the transport are covered by a mesh roof, the aisle or middle of that area is completely open so that anything could protrude into that space. [79] 3. During the Transition Period, on 5 January 2016, LDO purchased a "Driftrunner 5000" man transport vehicle, designation number SMV-003. [80] It was purchased from Cougar Mining Group Pty Ltd (Cougar). [81] 4. Mr Haberecht, Manager of Mechanical Engineering, describes himself as involved with the purchase from both "an LDO point of view and from a Lake Coal statutory engineer point of view". [82] 5. Before SMV-003 was delivered to site, Alan Ross, an engineer from LDO, was sent to the Cougar workshop to measure the vehicle. [83] Mr Ross reported to Peter Haberecht that the SMV-003 was 1820mm high. [84] The SMV-003 model was 6200mm in length. [85] 6. The SMV-003 had a similar configuration to the PJB-2545 with a front windscreen and open sides of the operator's cabin, mesh over the passenger seats but no covering or protection in the passenger aisle space. [86] 7. Mr Peter Haberecht directed Cougar to undertake modifications [87] to SMV-003 to ensure the vehicle was no higher than 1800mm. [88] 8. The modification process was undertaken through various emails sent by Stephen Ord, Equipment Director of the LDO Group to Cougar. However, Mr Ord reported to Mr Haberecht about the modifications agreed with Cougar. [89] Lowering the height of the SMV-003 was achieved by: 1. fitting low-profile tyres; and 2. lowering the suspension. [90] 1. Cougar undertook a risk assessment but only in relation to the mechanics/ engineering aspects of the SMV-003. [91] 2. The UTMP required a risk assessment to be carried out before a new type of vehicle, or one that had undergone a major modification, was placed in service. [92] 3. Mr Haberecht and Mr McConville signed off on an Introduction to Site form for SMV-003 which indicated that an assessment had been completed. The form had in handwriting reference to a document described as "RA 67 Operational use of JW/PJB Man Transport" (RA 67). [93] Mr McConville's understanding of this assessment was that it was directed to the mechanical and engineering operation of the vehicle rather than the use of the vehicle at a specific site. [94] 4. Indeed, RA 67 was not a site-specific assessment for SMV-003 at the Mine. In a response to a s 155 Notice seeking production of 'RA 67,' the Inspector was advised by Mr David McConnell, Manager of Mine Engineering, that "RA67 was an interim document number for the document referred to in the introduction to site form. The operation risk assessment provided is document number D-14480". [95] That document was annexed to the response. It was titled the "Operational Use of SMV/PJB Man Transports" at the Chain Valley Colliery (D-14480). Mr Haberecht and Mr McConville confirmed that this was the assessment document used for the SMV-003 at the Mine. [96] 5. D-14480 had been developed and used many years before, on 23 March 2011 when LDO had conducted a Risk Assessment at the Chain Valley Colliery. Peter Haberecht participated in the assessment. [97] D-14480 identified "Collision with plant or equipment while travelling through the Mine roadways causing personal injury" as having a "low" risk. [98] Existing controls at Chain Valley were identified therein, which the assessment found to be sufficient. 6. No similar Risk Assessment was conducted for SMV-003 at the Mine in January 2016. However, it is clear that at least Mr Haberecht ought to have been aware (as a result of his participation in D-14480) that one was desirable, if not necessary. 7. No other investigation or analysis was undertaken to determine if SMV-003 would have operational road clearance in the roadways being utilised during the Transition Period. [99] 8. SMV-003 began underground operations at the Mine for the first time on 22 January 2016. [100] 9. The defendant also advised that a Juggernaut identified as JUG-01 was also introduced to the Mine on 22 January 2016. [101] However, it had different dimensions and had not been driven past the Incident Site prior to the Incident. [102] 10. The evidence discloses a clear reliance (or assumption) by plant operators, the Mine deputy, and even senior officers at the Mine that "someone" would have conducted the appropriate checks before SMV-003 was introduced to the Mine roadways. 11. Mr Taylor, a mine deputy, said that he did not know but that he imagined that measurements would have been conducted and that he assumed that everything had been checked; [103] 12. Mr McClintock said that to his knowledge, prior to 22 January 2016, it was "probably" the job of deputies and other managers to ensure that the roadways at the Mine had sufficient clearance for transport to get through. [104] 13. Mr Haberecht said that he expected deputies at the Mine to have conducted audits including a check of roadway heights, but that he was not aware of any specific instruction being given to do so. [105] The Defendant Engaged Workers 1. On 10 October 2014, the defendant executed a contract titled "Umbrella Agreement" with LDO under which LDO supplied labour, professional services and workshop services for use in operations at the Mine. [106] 2. Pursuant to the Umbrella Agreement, there were general terms and conditions covering all labour and services provided to the defendant. There were also special conditions covering: 1. Labour support (which would have covered Messrs, McClintock, Roughan and Pedersen); [107] 2. Professional services (including safety); [108] and 3. Secondee services which covered Mr McConville, Mr Walker and Mr Haberecht. [109] 1. In relation to workers provided to the defendant by LDO, the Umbrella Agreement stated that: 1. there must be compliance with Coal Mine Work Health and Safety legislation; and 2. the site requirements involved compliance with both the defendant's and LDO's Health & Safety Management System. [110] 3. labour supplied by LDO were to work at the Mine (or Chain Valley) at the direction and supervision of the defendant acting through its managing director and the delegates of the managing director. [111] 1. In relation to secondees provided to the defendant by LDO, the Umbrella Agreement stated that: 1. the secondees were to work and carry out their duties in accordance with the directions and policies of defendant; [112] and 2. while seconded, the defendant was liable for the acts and omissions of secondees in the course of their work and carrying out their duties. [113] 1. LDO supplied thirteen (13) workers (including secondees) to the defendant pursuant to the Umbrella Agreement as at 22 January 2016 [114] including key personnel involved in the Incident, viz: 1. David Walker – Manager Mining Engineering, Mannering; who had been working at the mine since about May 2014; [115] 2. Peter McConville – Health, Safety, Environment and Community (HSEC) Co-ordinator; Mr McConville had worked for LDO for about nine years leading up to the Incident. [116] He is somewhat unsure of the precise date, but began work at the Mine in about early 2014; [117] 3. Peter Haberecht – Manager Mechanical Engineering. He held that position from about September 2014. [118] He had worked for LDO for nearly 11 years at the time of the Incident; [119] 4. Mr Quinten McClintock, who began working with a corporation related to the defendant, LD Coal, in November 2013. [120] He moved over to work at the Mine in January 2016; [121] 5. Mr Michael Roughan, who had started at the Mine as a Leading Hand Electrician about one week prior to the date of the Incident; [122] 6. Mr Robbie Taylor, a deputy at the Mine. He had worked intermittently at the Mine in the 18 months prior to 22 January 2016, and full time from 4 January 2016. [123] He had worked within the LDO Group for about two and a half years prior to the Incident; [124] and 7. Mr Benjamin Pedersen. 1. A complete list of LDO personnel working at the Mine in January 2016 can be found at PX4, Tab 100. 2. The defendant was required to pay LDO for the costs of the employment of each labour employee and each secondee, for which agreed sums were set out in the Umbrella Agreement. [125] 3. A "worker" is defined in s 7 of the WHS Act relevantly as follows: "(1) A person is a 'worker' if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking, or ….." 1. Accordingly, the Court finds that as at 22 January 2016 the defendant engaged, or caused to be engaged, and/or influenced or directed the workers seconded to it by LDO including Mr Pedersen. Ben Pedersen 1. Mr Benjamin Pedersen was born on 10 March 1991 and was 25 years of age at the time of the Incident. 2. Prior to his employment with LDO, Mr Pedersen had worked in mines in various roles since about 2010. [126] 3. By letter dated 13 January 2016, LDO made an offer of employment to Mr Pedersen to work as an Operator on the Link Road Project at the Mine. [127] Mr Pedersen accepted that offer on 21 January 2016. [128] 4. Prior to executing the contract, on 20 January 2016, Mr Pedersen did a "Contractor Underground Induction Assessment" for the Mine which assessed him as "competent". [129] 5. Mr Pedersen's first day of work at the Mine was on 21 January 2016. On that day, he undertook the following induction and training: [130] 1. he was shown around the surface level of the Mine; 2. he undertook site inductions which involved some PowerPoint presentations; 3. he obtained his competency or "tickets" concerning the use of heavy vehicles. This involved him demonstrating his ability to operate the vehicles on the surface. He was not required as part of this process to operate the vehicles underground. 1. On either 21 or 22 January 2016, Mr Pedersen was taken on a walkthrough underground by Mr McConville, together with other employees who were being inducted at the Mine. Mr McConville told Mr Pedersen that the purpose of the walkthrough was to show him the general area where he would be working underground. [131] 2. Mr Pedersen was not given any instruction, training or warning regarding the roof height, the minimum dimensions of the underground roadway or that there was a possibility of contact with the roof or plant attached to the roof. [132] Defendant – A PCBU that owed workers a health and safety duty 1. Section 19 of the WHS Act provides: "19 Primary duty of care (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. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of 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. By reason of the matters set out above, the Court finds that on 22 January 2016: 1. the defendant was person conducting a business or undertaking (PCBU), in that it was carrying on mining activities at the Mine; 2. the defendant caused workers to be engaged and/or influenced or directed the activities of workers in carrying out work at the Mine, including Mr Benjamin Pedersen; and 3. as such, the defendant had a health and safety duty to those workers, including Mr Benjamin Pedersen, pursuant to s 19 of the WHS Act. Incident – 22 January 2016 The location of the Incident 1. The relevant roadways in relation to the Incident are the main travelling roadway identified as Belt C4 roadway, and the secondary egress roadway identified as Main West 2 which in turn has a branch identified as Main North that goes to Longwall 7. These were identified during the hearing on enlarged maps. [133] 2. The Incident occurred near the junction between Belt C4 and Main West 2, leading to Main North towards Longwall 7 (Incident Site). A photograph of the Incident Site taken on Belt C4 looking inbye (towards the workings of the Mine) shows the junction and turn to Main West 2, leading to Main North towards Longwall 7 to the right. It also shows the roof and rib infrastructure including the W-straps. [134] 3. The Incident Site was identified by Messrs McClintock, Roughan and Pedersen, as well as officers of the defendant who pointed it out to the Investigators. [135] The location was also confirmed by the defendant itself in its internal investigation, titled "Incident Report" dated 5 February 2016. [136] The Incident 1. The shift on 22 January 2016 commenced at 7.00am. 2. At some time prior to 8.00am, Mr McClintock, an electrician, was directed to take SMV-003 underground to go to Longwall 7 to inspect a malfunctioning pump. Mr McClintock had a conversation in which Mr McConville (the HSEC Co-ordinator at the Mine) told him: 1. the SMV-003 was going underground for the first time; 2. the height of the vehicle was 1800mm; and 3. he was to take care when driving inbye to Longwall 7 and to make sure "it's okay to go up there". [137] 1. No other information or instructions were given to Mr McClintock. 2. Mr Roughan, who was to be a passenger in SMV-003, was not aware that this was the first time that SMV-003 was going underground although he did know it was "newish to the mine site". [138] He was not given any cautions, nor any information about the height or dimensions of SMV-003 nor any instructions as to road clearance. [139] 3. About 8.00am, Mr McClintock and Mr Roughan drove the newly commissioned underground vehicle SMV-003 down the Belt C4 roadway, turning right just after the junction with Main West 2 and then proceeded along Main North to inspect the pump at Longwall 7. [140] 4. Mr McClintock was the driver. Mr Roughan was the passenger. [141] 5. When they came to the Incident Site, Mr McClintock and Mr Roughan heard the roof of SMV-003 make contact with the roof of the roadway. Mr McClintock did not stop to inspect for damage. [142] There was no conversation about the event [143] and neither man reported the contact to any more senior officer of the defendant or LDO. [144] 6. Mr McClintock and Mr Roughan then drove to Longwall 7 where they inspected the pump and made a decision to remove the pump for repairs. [145] 7. At about 9:30 am, Mr Robbie Taylor, a Deputy Mining Supervisor, [146] drove another underground vehicle, being PJB-2545, inbye to Longwall 7 past the Incident Site. [147] There is no evidence that there was any contact with the roof at the Incident Site. He met with Mr McClintock and Mr Roughan at the pump. After that Mr Taylor and Mr Roughan drove outbye (away from the workings of the Mine) in PJB-2545 along the same route. [148] Again, no contact was made with the roof. 8. Mr McClintock followed, driving the SMV-003. At the Incident Site, Mr McClintock again heard the roof of SMV-003 come into contact with the roof. [149] Again, he did not stop and check for damage. He did not report the contact to Mr Taylor. [150] 9. The evidence of the expert metallurgist, Ms Judy Turnbull (Ms Turnbull), is that the W-Strap had, prior to the two collisions on 22 January 2016, been significantly distorted by previous impacts. The Court is satisfied that Ms Turnbull had the requisite qualifications and expertise [151] to provide the opinions contained in her two reports. [152] 10. According to Ms Turnbull, the second contact made by the SMV-003 damaged the W-Strap so as to break or tear it into two pieces. [153] Ms Turnbull opined that the shape of the W-Strap after the Incident indicated that it could have been hit by a vehicle travelling outbye. [154] 11. One piece of the W-Strap then partially hung down into the roadway space and due to a large tear in the hole for the bolt, [155] that piece swivelled around so that broken section was pointing in the direction of traffic travelling inbye. 12. This opinion as to the mechanism by which the W-Strap came to be hanging down into the roadway is supported by: 1. the defendant's Incident Investigation which noted that "all evidence points to the final damage to the W-strap occurring during this vehicle movement"; [156] 2. a diagram produced by defendant illustrates the manner in which it determined that the SMV-003, whilst travelling outbye, came into contact with the roof and damaged the W-Strap; [157] and 3. a photograph of the damaged W-Strap hanging down into the roadway at the Incident Site. [158] 1. After Messrs McClintock, Roughan and Taylor had returned to the surface, Mr Taylor directed Mr Pedersen to drive down to the pump at Longwall 7 in the LHD-031 to pick up the pump and transport it out for repairs. [159] 2. Nothing was said to Mr Pedersen about a new vehicle being introduced into the Mine on that day that was higher than other vehicles that had previously been used. [160] 3. Mr McClintock and Mr Taylor drove down first in the PJB-2545. Mr Pedersen followed driving the LHD-031. They commenced the inbye journey at approximately 1.30pm. 4. Mr Pedersen was not familiar with the roadway network and was travelling at a low speed in second gear. [161] Mr Pedersen said he was driving approximately in the middle of the roadway, [162] and by this he meant that the vehicle itself was in the middle of the road. [163] 5. As noted above, the operator seat of the LHD-031 is perpendicular to the direction of travel and the operator is required to turn his/her head in the direction of travel. [164] 6. Messrs Taylor and McClintock drove the PJB-2545 inbye along Belt C4 then along Main West 2 to the junction at the Main West roadway and waited there (just before the double doors) so as to allow Mr Pedersen to catch up so they could lead him through the doors to Main North. [165] They did not make contact with the roof during that journey. 7. As he approached the Incident Site, Mr Pedersen was trying to see around the right‑hand bend in the roadway. [166] While undertaking this manoeuvre Mr Pedersen heard the W-Strap make contact with the canopy of the LHD-031. The W-Strap then entered the operator cabin space and pierced the left side of Mr Pedersen's head. [167] Mr Pedersen said that the W-Strap protruded about halfway into the cabin. [168] 8. Mr Pedersen was wearing a hard hat at the time. However, the broken W-Strap flipped his hard hat off [169] and it then made contact near Mr Pedersen's left ear and resulted in a severe laceration that extended from near his left ear to his left eye. [170] 9. Despite the severity of the injury, Mr Pedersen maintained consciousness and stopped the LHD-031. He placed pressure on the laceration with his hand to stem the bleeding, exited the vehicle and walked down the roadway in the direction of the PJB-2545 to seek assistance. [171] 10. Messrs Taylor and McClintock provided first aid and Mr Pedersen was subsequently evacuated from the Mine. [172] He was taken to Wyong Hospital by ambulance. [173] 11. The hospital notes state that Mr Pedersen sustained a deep laceration to the "left fronto [sic] temporal region" with "substantial arterial bleeding". After the wound was cleaned, it was necessary to tie off the temporal artery before placing sutures on the wound. [174] Mr Pedersen was told that there was a significant risk of infection arising out the environment in which the injury occurred and was provided pain medication upon his release. [175] 12. Mr Pedersen's stitches were removed in stages. For the first four months after the Incident, he occasionally experienced sharp pains in the area of the cut. [176] On his return to work, he experienced difficulties because of a large amount of swelling. [177] Further, Mr Pedersen said that he still suffers from nerve pains. [178] 13. In answer to a request from the Bench, Mr Pedersen showed the Bench the large scar on the left side of his head. [179] 14. The injury sustained was clearly serious but could have easily been worse, with the risk of death a genuine possibility. 15. Mr Pedersen returned to work at the Mine for a short while but eventually resigned. The Mechanism of the Damage to the W-Strap 1. Following the Incident, Inspector Bath issued an Improvement Notice to the defendant. Part of that Improvement Notice required the defendant to undertake an investigation as to how the Incident occurred. [180] In undertaking that investigation, the defendant arranged to conduct a survey of the Incident Site area. This involved placing survey markers on the floor and ceiling 50 metres in each direction from the Incident Site. [181] 2. The surveyor then constructed a diagrammatic depiction of the roadway and inserted a diagram of SMV-003 going both inbye and outbye. [182] On the defendant's survey depiction, it had the SMV-003 making contact with the roof strap only when travelling outbye (see diagram 9 at PX4, Tab 64, p 1102). However the notation on that survey diagram states, "SMV suspension has not been taken into account". 3. In addition, the defendant's surveyor also inserted a diagram of the LHD–031 going inbye and depicted how the broken roof strap penetrated into the open operator's canopy. [183] 4. The defendant's surveyor also illustrated the manner in which the severed W-Strap rotated on the roof bolt, so that the broken part of the W-Strap (measuring 1.75m) swivelled in the outbye direction. [184] 5. The prosecutor arranged for the survey data gathered by the defendant to be provided to an independent surveyor, Mr Martin Burns who then provided an expert report. [185] 6. The Court is satisfied that Mr Burns had the requisite qualifications, knowledge and skill to provide the opinions (and diagrams) in his report. [186] 7. Using the survey data provided by the defendant, Mr Burns constructed a two dimensional representation of the roadway in the vicinity of the Incident Site and set out his methodology. [187] Figure 1.0 shows a 'map' of the roadway of the Incident Site. Mr Burns divided the road into two sections: Section 1 being the left-hand side of the road (looking inbye) and Section 2 being the right hand side (looking inbye). [188] This was done because it was not known precisely where on the roadway the SMV-003 travelled on 22 January 2016 [189] and therefore various possible scenarios were analysed. 8. Mr Burns then constructed a horizontal view of the roadway using the chainage points provided by the defendant. [190] The roadway clearance was highlighted in yellow in the diagram and it shows the undulating nature of the roof and also the undulating floor surface of the roadway. [191] 9. Mr Burns then utilised the design specifications for the SMV-003 [192] and created a diagrammatic form of that vehicle and placed it into the roadway clearance in the roadway diagram (Figure 1.1) that he had created for Section 1 travelling inbye (i.e. travelling inbye on the left hand side of the roadway). It is significant to note that, acknowledging that there were a number of different height measurements advanced at different times for SMV-003, Mr Burns has taken the most conservative approach in his calculations, assuming the height of SMV-003 was no more than 1.79 metres when, in reality, there is ample evidence to indicate it was 1.8 metres. [193] 10. Mr Burns was able to show that by reason of the undulations in the roadway surface and also the undulations in the roadway height, when the SMV-003 was travelling over the roadway surface, the rear end of the SMV-003 tilted upwards. In this scenario, Mr Burns calculated that the clearance from the roof of the roadway to the top rear of the vehicle would be 0.12 m. However, Mr Burns noted that these were static measurements and would not take into account any vertical movement (upwards or downwards) of the SMV-003 by reason of any mechanical movement such as spring created by travel. He also noted that the diagram was based on an assumption that the roadway was clear of all debris. [194] 11. Finally, and more significantly, Mr Burns noted that he constructed the diagram on the basis that an undamaged W-Strap would be approximately 0.05 m lower than the height of the roof. On those assumptions, he stated that the top rear of the SMV-003 in this scenario would have cleared an undamaged W-Strap on the roof by 0.07 m. However, Mr Burns stated that if the W-Strap had been deformed and was hanging down lower that 0.07, then there would have been an impact. [195] 12. Mr Burns repeated these calculations (and made diagrams) for three more scenarios being: 1. SMV-003 traveling outbye in Section 1 (left-hand side of the road): Figure 1.2. [196] In this scenario, Mr Burns opined that there would have been contact with an undamaged W-Strap and therefore if the damaged W-Strap hung lower there would also have been contact; [197] 2. SMV-003 traveling inbye on Section 2 (right hand side of the road): Figure 1.3. [198] In this scenario, Mr Burns opined that there would have been contact with an undamaged W-Strap (and therefore also with a damaged one); [199] 3. SMV-003 traveling outbye on Section 2 (right hand side of the road): figure 1.4. [200] Mr Burns found that there would have been no contact with an undamaged W-Strap but the clearance was only 0.015m. As such if there had been deformation of the damaged W-Strap that extended it lower than 15mm, then there would have been an impact. [201] 1. The expert report of Ms Judy Turnbull does not provide a measurement of the "height" of the deformation of the W-Strap. However, the damage to the W-Strap meant that the W-Strap was quite twisted. By reason of the photographs contained in that report, [202] including the reconstruction photo, [203] the Court is satisfied that the W-Strap was likely to have been extending further into the roadway space than an undamaged one. 2. Further, during the site inspection on 23 March 2016, a photo was taken by Inspector Delmenico where the two pieces of the W-Strap were held up to the roof to show what it would have looked like in situ. [204] This may be of limited assistance given that the pieces of this W-Strap were, by then, further deformed by the impacts of the SMV-003. However, the photos of other damaged W-Straps in the area do illustrate that they protruded more than 0.05m (being the undamaged height) down into the roadway. [205] 3. Ms Turnbull set out, step-by-step, her opinion as to how the damage to the W-Strap occurred - commencing with the loss of the middle roof bolt, then to the multiple impacts from differing vehicles over time and then the final tear and rotation of the W-Strap. [206] Ms Turnbull noted the levels of oxidisation and corrosion on the W-Strap to support her view of multiple impacts over time but was unable to provide any opinion about precisely when those pre-existing impacts occurred. [207] Ms Turnbull opined that the final fracture to the W-Strap was caused by a vehicle travelling outbye, [208] by reason of the final deformation of the W-Strap. 4. Ms Turnbull concluded: "The investigation conducted on the W-Strap suggested that it had rotated and was hanging down into the roadway as a result of impact by one or more modern vehicles. The loss of a roof bolt in close proximity to the fracture allowed the section of strap to rotate so that it pointed into the direction of incoming traffic. The W-Strap had fractured as a result of multiple overloading events. The location and direction of crack propagation across the width of the strap indicated impact from vehicles traveling in a direction out of the mine. The presence of different coloured paint adhering to the strip indicated impact by multiple vehicles. The direction of tearing of the roof bolt hole approximately 1580mm from the fracture indicated a force towards the centre of the road and downwards into the roadway…" [209] (Emphasis added) 1. A further expert report was obtained from Dr Tim White, forensic mechanical engineer. [210] The Court would be satisfied that Dr White had the requisite qualifications, knowledge and skill to provide the opinions in his report. [211] 2. In his report, Dr White concludes that it was foreseeable that SMV-003 would come into contact with the roof of the roadway in the region of the W-Strap, taking into account: 1. the height of SMV-003, being higher than other vehicles already in use at the Mine; 2. the mechanical design of SMV-003, in particular the extent to which the rear of SMV-003 overhung its rear axle, with the rear axle constituting a fulcrum around which the body of SMV-003 could "see-saw", such that the top edge of its rear end would move upward to a greater degree than a vehicle with a shorter overhang; and 3. the uneven and undulating nature of the surface of the roadway, which Dr White found would contribute further to the abovementioned "see-saw" effect. [212] 1. The Court finds from the expert evidence that the contact occurred because there was less than adequate roadway clearance because of: 1. the undulations in the roof and floor surfaces of the roadways (caused by, amongst other things, floor heave); 2. the dimensions of SMV-003, in particular its height and the length of the rear overhang behind the rear axle; and 3. the pre-existing damage to the W-Strap reduced the height clearance at that point. The Investigation 1. At about 4.23pm David Walker, Manager of Mining Engineering, notified Steven Bath, Senior Mine Safety Officer, by telephone of the Incident. [213] 2. On 26 January 2016, Inspector Bath issued the defendant with an Improvement Notice pursuant to s.191 of the WHS Act that required the Mine to: 1. review the introduction to site arrangements for mobile plant with emphasis on dimensional parameters and adequate clearance between plant and roadways; and 2. investigate the cause and circumstances of the Incident, forwarding all findings and recommended actions to the Inspector and industry Safety and Health Representative. [214] 1. On 27 January 2016 Inspector Bath conducted an on-site examination of the Incident Site and met with Mr Walker and Mr McConville. Inspector Bath was taken to the Incident Site. He did not take any photos or measurements of the W-Strap, [215] but said it was low enough to be reached by hand. [216] Inspector Bath observed the W-Strap hanging from the roof. He also saw that there was a roof bolt near the left-hand rib and another bolt in the centre of the roadway but the W-Strap had been torn in between. 2. During the course of the inspection, Mr Walker said to Inspector Bath: "We've spoken to electricians who were driving the SMV and they've said they scraped the roof in that low area. There's scratch marks on the roof. It was higher than the other vehicles that normally come along this travel road." [217] 1. Following the Incident, Mr Taylor took photographs [218] of the W-Strap at the scene. [219] At the time of taking these photographs, the W-Strap was in the position in which it was left following the evacuation of Mr Pedersen. [220] Mr Taylor observed what appeared to be hair on the end of the W-Strap pointing into the roadway. [221] 2. Inspector Bath then issued a Prohibition Notice pursuant s.195 of the WHS Act that required the defendant to: 1. keep the SMV-003 out of service until it was checked for compliance with specified dimensions; 2. modify the SMV-003 if it was non-compliant to specified dimensions; 3. stop using rubber tyred vehicles to transport passengers underground until an audit of the clearance along the Mine's underground travelling roads is completed; 4. communicate audit findings to the workforce, Inspector of Mines and Industry Safety and Health Representative; 5. check all mobile plant used underground in relation to their compliance with maximum tolerable dimensions with results recorded and forwarded to the Inspector of Mines. [222] 1. On 8 February 2016 Inspector Bath conducted interviews with Messrs McClintock, Roughan and Pedersen. He did so pursuant to s 171 of the WHS Act. Transcripts of each of those interviews were adopted by each of the interviewees as a true and accurate record of the interview. [223] 2. On 24 February 2016 the defendant lodged an Incident Notification Form with the Department. [224] 3. From 8 March 2016 Inspector Greg Delmenico took over the investigation and, amongst other things, conducted an Incident Scene Analysis, took photographs, arranged for a survey of the area, seized the W-Strap and arranged for Ms Judy Turnbull, Metallurgist, to undertake an assessment of the damaged W-Strap. In addition, Inspector Delmenico issued s.155 Notices and conducted the remainder of the recorded interviews with personnel from the defendant's Mine. Persons interviewed by Mr Delmenico included Mr Pedersen, Mr Taylor, Mr McClintock, Mr Roughan, Mr McConville, Mr Haberecht and Mr Walker, all of whom adopted the transcripts produced from those interviews as a true and accurate record of their respective interviews. [225] 4. In the course of the investigation, Inspector Flowers conducted a reconstruction with the W-Strap at the scene, [226] (one end of which had blood and hair on it). [227] The hair was still visible on the section of W-Strap after it had been seized. [228] 5. One section of the W-Strap was seized on 23 March 2016 [229] and, together with another section of the W-Strap provided by the defendant's officers to investigators on 8 April 2016, [230] was sent to Ms Turnbull for metallurgical analysis. 6. As part of her analysis, Ms Turnbull performed a reconstruction of the two seized sections of the W-Strap, to demonstrate how the relevant portion of the W-Strap would have looked prior to fracture and that the location of the fracture which would have left a section of the W-Strap pointing into the roadway. [231] 7. The defendant was charged on 19 January 2018. The Charge General Principles 1. The Prosecution must prove beyond reasonable doubt each of the elements of the offence and any essential or intermediate fact in the reasoning process towards an inference of guilt. [232] 2. The Prosecution is not required to prove each fact pleaded in the Summons beyond reasonable doubt. Further, no objection can be taken to any variance between the pleading and the evidence adduced in the proceedings. [233] The Charge 1. The prosecutor alleges that on 22 January 2016 the defendant had a health and safety duty pursuant to s 19(1) of the WHS Act, in respect to workers at the Mine, and in particular in respect to Mr Pedersen. 2. Clause 23 of the Amended Summons pleads that the duty was directed to the health and safety of workers, including Mr Pedersen, while they were driving on the roadways in the Mine utilised in the Transition Period, in particular Main West. 3. In order to establish the existence of that duty the prosecutor must prove that: 1. the defendant was conducting a business or undertaking; 2. there were workers including Mr Pedersen who had been engaged, or caused to be engaged, by the defendant and/or whose activities in carrying out work were influenced or directed by the defendant, and 3. the workers including Mr Pedersen were at work in the business or undertaking of the defendant. 1. By reason of the matters set out above, the Court makes those findings. 2. The prosecutor alleges that on 22 January 2016 the defendant failed to comply with its health and safety duty pursuant to s 19(1) of the WHS Act. 3. The prosecutor alleges that the defendant's failure to comply with its duty exposed Mr Pedersen to a risk of death or serious injury. Paragraph 24 of the Amended Summons specifies the Risk as follows: "The Risk was the risk of workers in particular Mr Pedersen, suffering serious injury or death whilst driving along underground roadways as a result of being struck by a W-strap that had been damaged and had partially fallen down into the roadway space, creating an obstruction (Risk)." 1. As a result of its failure to comply with its duty the defendant committed a Category 2 offence pursuant to s 32 of the WHS Act. 2. Section 12A of the WHS Act provides that the offence is one of strict liability with respect to the physical elements. Whilst on the face of it that would imply that the entire offence is one of strict liability, the definition of 'reasonably practicable' in s 18 of the WHS Act imputes some consideration of the defendant's state of mind. The Nature of the Primary Duty 1. The primary duty imposed on a PCBU to ensure the health and safety of workers requires the PCBU to eliminate risks to health and safety so far as is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable. [234] Without limiting the generality of that provision, the PCBU is to do so by reference to the specific matters listed in subs 19(3). 2. The requirement to "ensure" means to guarantee or make certain. [235] 3. In this matter, the prosecutor points to the provisions of ss 19(3)(c) and (f) of the WHS Act: 1. In cl 27 of the Amended Summons, the prosecutor pleads that the defendant failed to develop and implement a safe system of work in that it failed, during the Transition Period and prior to allowing any vehicle to enter any of the underground roadways at the Mine, to develop a system of work that addressed the hazards that the defendant had already identified in its WRACs (discussed in more detail below) and, further, that it failed to conduct an audit of roadways to assess operational roof clearance for vehicles over the road surfaces (Systems Charge). 2. Further, in cl 24 of the Amended Summons, the prosecutor has pleaded that the defendant failed to provide training and instruction to workers that if the vehicle they were driving impacted with the roof infrastructure of an underground roadway, they were required to stop the vehicle, assess the roof for damage and if there was damage to take steps including reporting the matter to their supervisor, isolating the area and then remaining at the site until a supervisor arrived to make a determination about what should be done. Even if there was no damage, the worker should make a report to their supervisor after which an assessment would be conducted within a reasonable period (Training and Instruction Charge). Exposure to Risk 1. The safety of workers cannot be ensured if a risk to the health and safety of a worker exists at the PCBU's workplace. The existence of the risk constitutes a breach of the primary duty under s 19 of the WHS Act. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury. 2. It is an element of a Category 2 offence that a person is exposed to such a risk. The phrase "exposed to risks" has been interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen. [236] 3. It is not necessary that there is an accident or that a person is injured. [237] Nor is it necessary for the prosecutor to prove the particular circumstances in which an incident occurred, in order to establish the existence of the pleaded risk. The risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured or killed, but is the risk arising from the failure to take the reasonably practicable steps to avoid injury or death occurring. [238] 4. "Risk" means the mere possibility of danger and not necessarily actual danger. [239] 5. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. However, a distinction must be drawn between the specific risk that manifested in any incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error. [240] Reasonably Practicable Measures 1. The prosecutor is required to demonstrate the particular measures pleaded in the Systems Charge and/or the Training and Instruction Charge should have been taken to minimise the Risk identified. [241] 2. However, the defendant's failures do not have to be the sole cause of the creation of the pleaded risk. The relevant question on causation is whether the pleaded act or omission of the defendant was a significant or substantial cause of a worker being exposed to the risk of serious injury or death. [242] 3. The primary duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible. [243] 4. In the recent case of Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 [244] , the Court cited Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 at 126: "The question in cases such as the present is not whether the detail of what happened was foreseeable but whether accidents of some class or other might conceivably happen, and whether there is a practicable means of avoiding injury as a result." 1. A duty holder under s 19(1) of the WHS Act must have a proactive approach to safety issues and the identification of risks within its workplace. A PCBU must have a structured and systematic approach to risk management. [245] The question is not - did the duty holder envisage a particular risk, but rather should it have. [246] 2. In para 24 of the Amended Summons, the prosecutor pleads that the defendant's failure to take the reasonably practicable steps in relation to the system of work and also in relation to the training and instruction, exposed workers, including Mr Pedersen, to the pleaded Risk. The Safety System at the Mine 1. The safety system in place at the time of the Incident was, for the most part, derived from the time that Centennial operated the Mine. 2. At the time of the Incident the defendant did not have a full safety management system in place in accordance with cll 13 and 14 of the Mines Regulation. [247] This is despite the fact that at that time, the defendant was in a Transition Period, having come out of the Second Care and Maintenance Phase. 3. The documented safety system that was in place as at 22 January 2016 was as follows. 4. First, there had been Broad Brush Risk Assessment for the Handover of Mannering Colliery on Care & Maintenance dated 9 October 2013, [248] which illustrated that the defendant had directed its mind to understanding the hazards and controls associated with taking over the Mine, in Care and Maintenance mode. [249] However, it is clear from the document that this assessment was directed only to the risk associated with the handover process, not the operation of the Mine itself. 5. Second, and of more relevance to these proceedings, was the UTMP. [250] It had been developed by Centennial and was utilised by the defendant as part of the safety management system. [251] 6. The UTMP provided, relevantly: 1. "roadways through which man transports and normal material transport" travelled were required to be "at least 3.5 metres wide and 1.9 metres high". [252] 2. that a vehicle was not to be driven into a roadway where there is insufficient height and width for the vehicle, and its load, to pass without making contact with the roof. [253] However, there was no indication as to how the driver/operator was to know whether there was sufficient height or width. Mr McClintock's evidence was that he believed that deputies or managers were responsible for ensuring sufficient roadway clearance for transports. [254] Mr Taylor, the deputy, said that he understood that once a transport vehicle was "wound down the pit it's deemed fit for purpose underground". [255] 3. it did not provide any instruction on what an operator should do if a vehicle struck the roof of a roadway, instead only providing the following instruction concerning situations where contact with the roof might occur: [256] "Where the vehicle is in a restricted space and there is a risk of the vehicle's load being dislodged, or there is a risk that the vehicle may dislodge, or bump, other equipment or materials, the driver must not operate the vehicle whilst other persons are adjacent to the vehicle." 1. for risk assessments to be carried out before a new type of vehicle, or one that had undergone a major modification, was placed in service; [257] 2. It did not, however, make any provision for the maximum height of vehicles. 1. Third, there was the Centennial – Mannering Colliery HSMS-02 Inspection Management Plan (undated). [258] This document noted, inter alia, that the Coal Mine Health and Safety Regulation 2006 (NSW) required regular statutory inspections of areas including roof and sides of roadways. [259] It also stated that regular inspections were required of all safely accessible roadways. [260] The document specified particular provisions of the Regulation in relation to the inspections. However, what is clear from the evidence in this matter is that whilst the Deputy undertook the Inspections, he was not properly trained in how to do so and that the topic areas that he covered were done in a rather perfunctory manner. [261] The Inspection Management Plan, however, envisages the taking of "remedial action as a result of an inspection to a person more senior in the management structure". It also envisages regular and timely review of the Reports of Inspections. The evidence does not disclose that this particular document and that regime was followed, particularly as at 22 January 2016. 2. Fourth, there were a series of three Workplace Risk Assessment and Controls (WRACs). These are significant and relevant documents in these proceedings and indeed the proposed risk controls identified in the 2014 and 2015 WRACs form the basis of the Systems Charge. 3. The LDO Group Workplace Risk Assessment and Control LakeCoal – Mannering Colliery was dated 5 December 2013 (2013 WRAC). [262] This was carried out whilst the Mine was in the Second Care and Maintenance Phase. It was done by the LDO Group (of which the defendant is a part). This risk assessment did not identify the operation of vehicles underground as a hazard. However, it did identify a potential hazard of "loss of roadway or access through roadway due to excessive floor heave" and it noted that the existing controls for that hazard included statutory inspections (daily and weekly) as well as "floor heave has been removed in critical areas on as need basis (sic)". [263] Further, the 2013 WRAC had identified a potential hazard of "flooding of U/G roadways or strata failure due to LTA inspections" and the existing control, said to be adequate, was statutory inspections (daily and weekly). [264] 4. The LDO Group Workplace Risk Assessment and Control LakeCoal – Mannering Colliery was dated 20 and 27 May 2014 (2014 WRAC). [265] The LDO Group Workplace Risk Assessment and Control LakeCoal – Mannering Colliery was dated 3 and 26 November 2015 (2015 WRAC). [266] These WRACs did identify hazards associated with the operation of underground transport colliding with the rib, roof and infrastructure (which would apply to a W-Strap) and both WRACs proposed Risk Controls to deal with those identified hazards. Those WRACs are discussed in detail below in the context of the issue of foreseeability of the Risk. However, it is worth noting at this stage that: 1. Relevant risk controls identified in the 2014 WRAC were due to be implemented by August 2014 but this did not occur; [267] 2. Relevant risk controls identified in the 2015 WRAC were due to be implemented by 20 February 2016, [268] but had not been done as at 22 January 2016. 1. Further, the manner in which the defendant approached the 2015 WRAC has to be put in the context that every single risk control for every identified hazard set out in the 2015 WRAC was due to be done by 20 February 2016. The defendant could not have delayed implementation for all of the risk controls until the due date. Rather, it was incumbent on the defendant to have undertaken the said controls in a staggered fashion so that the necessary risk controls were in place to ensure the health and safety of workers. 2. In response to the potential hazard of less than adequate roadway dimensions causing damage to equipment or infrastructure identified in the 2015 WRAC, Mr Haberecht was assigned responsibility for reviewing Introduction to Site Document D-10263 to include the height of plant. However, he was not consulted regarding this proposed control [269] and he had not completed this task as at 22 January 2016. He was not aware why it had not been done. [270] Similarly, Mr McConville had not commenced work as at 22 January 2016 on the development of a "Roads & Other Vehicle Operating Areas" Principle Mining Hazard Management Plan, despite being assigned this task in response to potential hazards including collision with rib, plant, infrastructure or services causing damage. [271] 3. Fifth, there was the LDO Group Safe Work Method Statement – specialised Services and Labour Hire at Mannering colliery – LakeCoal dated 4 November 2013. [272] It required that prior to bringing any new equipment on site there had to be an introduction to site and commissioning process. In particular: 1. Section 5.12 stipulated that employees of the LDO Group would be trained in the Incident Reporting Form; [273] and 2. Section 5.14 required compliance with an "Introduction to Site and Commissioning" which was said to be a 15 page document that must be completed prior to any equipment being used at a coal operation both surface and underground and to be signed off by relevant managers. [274] 1. The defendant did undertake an "Introduction to Site" on the specified form (although it is only 12 pages in length). However, it is clear from the evidence of Mr McConville [275] that this was an assessment directed to the operation of the vehicle rather than how it would be used in the roadways in the Mine. [276] 2. Sixth, there was a pro forma Risk Management Assessment Form HSSTD-0002 (D-13534). [277] However, it was a generalised form only. Further, as at 22 January 2016, neither Mr McClintock [278] nor Mr Roughan [279] had undertaken training in it. Mr Pedersen's training records indicated that he was trained in "Risk Management Assessment" on 4 June 2013. [280] It also shows that he was retrained in that component on 6 May 2016. [281] 3. Seventh, there was the LDO Group Risk Management Standard dated 6 May 2015. [282] 4. Eighth, there was the LDO Group Work Health & Management System Power Point Presentation – Information, Consultation and Communication (undated). [283] 0 5. Ninth, there was a report prepared in relation to a Driftrunner for the Valley Longwall Mine. It was done in 2009 and identified "Minimum Head Room Requirements low height considerations" as a potential hazard/risk. [284] 6. In addition, to those documented procedures, on 17 October 2017, the Regulator issued a s 155 Notice (Notice No. 171017_GD002). [285] It required, amongst other things, the production of any procedure that was in place prior to January 2016 at the Mine in relation to what Operators were to do if they struck the roof or any structure attached to the roof with a vehicle. 7. The defendant's response was that: [286] "There was no specific procedure in place. There were, however, documents including training and assessment documents, that referred to worker's obligations to remedy and report hazards." 1. It went on to list those documents as: 1. an assessment form titled "Information, Consultation and Communication HSSTD-00004 (D-13553)". [287] It contained the following true/false questions to be answered by workers: "Q4 Any Worker must report to his/her immediate supervisor any situation that the worker believes could prevent [sic] a risk to health and safety. … Q11 (first) Workers are to immediately report to his or her immediate supervisor any situation that the Worker believes could present a risk to health and safety and that is not within the employee's competence to control. If the worker's supervisor is not immediately available the worker will be advised that he/she must instead immediately report to another supervisor at the workplace." The training records of Mr McClintock and Mr Roughan show that they had not received training in relation to this. [288] 1. Two slides (11 and 12) in an "Information, Consultation & Communication Power Point". [289] They appear to be identical. They identify a direction to report any situation that the worker believes could present a risk to health and safety. It puts the identification of the hazard in the hands of the worker in circumstances where they may not have had (and probably did not have) any relevant information about the malleability of W-straps, the effect of repeated collisions with W-straps or the operation of floor heave. 2. Risk Management HSSTD2 STD (section 7.9), which was published on 6 May 2015 by the LDO Group and was a Standard for the methodology of risk assessments. The only relevant aspect appears to be reference to "60 seconds 4 safety". [290] The Standard was designed to ensure hazard identification and risk assessment was to be conducted and that there be appropriate training and experience using appropriate risk management tools in order to achieve those goals. 3. two Man Transport Training and Assessment Forms titled: * "Man Transporter (SMV / PJB) RIIMCU203D Authority to Train" [291] and * "Man Transporter (SMV / PJB) Conduct Wheeled Vehicle Operations (Non-Articulated) RIIMCU203D Competency Assessment". [292] Neither document addressed what action a worker was to take where a vehicle did make contact with the roof or rib of a mine roadway. Instruction and Training at the Mine 1. The instruction and training of workers at the Mine during the Transition Period in relation to the steps to be taken in the event of a collision with roadway infrastructure, was limited. Moreover, the evidence shows that there was quite a different view between Mr McClintock and Mr Roughan, for example, as to what should occur in the event of an impact with roof infrastructure, to that of management. Mr McClintock said he had seen the UTMP but could recount little, if anything, from it. [293] More significantly, Mr McClintock's understanding was that he did not have to stop and check if contact was made with the roof unless there was some significant damage to the vehicle. [294] 2. On the other hand, Mr Haberecht had an expectation that, pre-Incident workers would, report any instances of vehicles hitting a W-strap. [295] Mr Walker also had an expectation that workers should stop and remedy the problem or report it to a supervisor. [296] 3. In addition, the training records of Mr McClintock, Mr Roughan and Mr Pedersen reveal that, as at 22 January 2016 there had been no consistent approach to the training modules that each of those workers were required to have completed before commencing work. For example, Mr Pedersen had undertaken a wide variety of training prior to 22 January 2016 albeit at other mines operated by the LDO Group, including at the Chain Valley Colliery. However, that had occurred some 3 years prior. [297] 4. Relevant to these proceedings, as at 22 January 2016, Mr Pedersen: 1. had been trained about three years before in the following modules: * Risk Management Assessment (previously done on 4 June 2013; [298] and not done again until 6 May 2016 [299] ); * Work Health and Safety (not done since 4 June 2013; [300] and then not done until 6 May 2016 [301] ) 1. had received training at the Mine prior to starting work in the following modules: * Contractor Underground Induction; [302] * Emergency Escapes; [303] * LHD – Up to 10 Tonne; [304] * Incident Reporting Man Transporter (SMV/PJB) [305] (but note that this was carried out on the PJB); [306] * Men and Materials Haulage – Normal Mode; [307] * Oxy K50; [308] * Surface Familiarisation and Induction Assessment; [309] * XAM5600 Operating Training; [310] 1. had not been trained at all in the following modules: * Incident Reporting Assessment (this was not done until 9 May 2016); * Movement of Mobile Plant Assessment (this was not done until 9 May 2016); [311] * Roads and Other Vehicles Operating Assessment; (this was not done until 6 May 2016. [312] 1. Mr Pedersen was not given any instruction, training or warning regarding the roof height, the minimum dimensions of the underground roadway or that there was a possibility of contact with the roof or plant attached to the roof. [313] 2. Mr McClintock had received training within the previous 3 years at the Chain Valley Colliery or elsewhere under the auspices of the LDO Group and as at 22 January 2016, Mr McClintock: 1. had been trained about three years before in the following modules: * Man Transporter (SMV/PJB) on 3 December 2013; [314] * Man Transporter (SMV/PJB) on 20 January 2014; [315] 1. had not received any additional training immediately prior to starting work at the Mine; and 2. had not been trained at all in the following modules: * Incident Reporting Assessment; [316] * Movement of Mobile Plant Assessment; [317] * Risk Management Assessment; [318] * Roads and Other Vehicles Operating Assessment; [319] and * Work Health and Safety. [320] 1. On 22 January 2016, the oral instruction given to Mr McClintock prior to taking SMV-003 into the Mine for the first time was simply to make sure "it's okay to go up there". [321] 2. Mr Roughan's training records indicate that he had received the least amount of training of the 3 plant operators from the defendant or the LDO Group and as at 22 January 2016, Mr Roughan: 1. had received no prior training from any LDO Group company; 2. had received training at the Mine prior to starting work in the following modules: [322] * Conduct Underground Lifting Operations; * Contractor Underground Induction; * Emergency Escape; * Man Transporter (SMV/PJB) (but note that this was conducted in relation to the PJB only); * Men and Materials Haulage; * Oxy K50; * Surface Familiarisation and Induction Assessment; * XAM560 Operator Training; 1. had not been trained in the following (relevant) modules: * Incident Reporting Assessment; * Movement of Mobile Plant Assessment; * Risk Management Assessment; * Roads and Other Vehicles Operating Assessment; and * Work Health and Safety. 1. Mr Roughan had undergone an induction for driving a light vehicle underground, but could not recall any guidance in terms of clearance and height. [323] Further, his evidence was that he had been given no instruction at all about what to do when a vehicle hits the roof or rib. [324] 2. Mr Robbie Taylor was the Mine Deputy as at 22 January 2016, [325] but it is evident that the training that he received in relation to his deputy's inspections of the roof and road infrastructure was inadequate. His evidence was that it would be "any visible signs you can see, anything out of the ordinary, a bit of roof fallen in, ribs overly covering the road". [326] He had received no formal training about how to fill in the Deputy Inspection reports in relation to these statutory inspections [327] (on which many parts of the WRACs had been based). Instead he had simply observed what other deputies had done and expected to be instructed if he was not doing what "they" wanted. [328] 3. It is clear that Mr Taylor had never received any training to make reports about damaged W-straps or to determine where, in underground roadways, there may be some impact from either floor heave or damaged W-straps hanging down into the roadway space, or roadway clearance. 4. Further, Mr Taylor was not instructed or advised about the introduction of the new SMV-003 on 22 January 2016. [329] In his evidence, he stated that it was his view that once the SMV-003 had been introduced to site by the mechanical and electrical departments, it was fit for use underground. [330] 5. As noted above, the UTMP plan provided, inter alia, that a vehicle shall not be driven into a roadway where there is insufficient height and width for the vehicle, and its load, to pass without making contact with the roof. However, the UTMP did not: 1. stipulate how the driver/operator was to know whether there was sufficient height or width; and 2. provide any instruction on what an operator should do in the event of a collision with the roof or infrastructure of a roadway. Foreseeability of the Risk 1. In order to assess the practicability of minimising the Risk, it is necessary to have regard to the foreseeability of that Risk: see ss 18(a) and (c) of the WHS Act. In Workcover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362, the Court held: "If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it." [331] 1. In this matter, the hazard was the potential for underground vehicles to collide with and damage W-straps affixed to the roof of the underground roadways in the Mine, thereby causing the W-straps to hang down into the roadway space, causing an obstruction. The Risk was the risk of serious injury or death, arising out of that hazard. 2. The Court finds that there was a likelihood of the hazard and also the risk occurring, thus satisfying the provisions of s 18(a) and (c) of the WHS Act. Overwhelmingly, it is the defendant's own safe work system documents which establish that not only was the hazard and the Risk objectively foreseeable but, that the defendant had in fact foreseen both the hazard and the Risk and had perceived controls that would have minimised that Risk. This is illustrated in the relevant sections of the 2014 WRAC and the 2015 WRAC. 3. Nonetheless, reference is made to the Departmental Guidelines which inform, at a much more general level the identification of risks associated in the mining industry and the requirement to undertake appropriate Risk Assessments. Indeed it appears that by developing and publishing the 2013, 2014 and 2015 WRACs, the defendant did undertake risk assessments. The failure, however, is that having identified the hazard and the Risk (at least in so far as the 2014 and 2015 WRACs are concerned), the defendant did not take steps to implement the controls to address and minimise the Risk. Departmental Guidelines 1. As at the date of the charge, the Department of Primary Industries (Department) had published at least three Guidelines which were available to mine operators, including the defendant. Two were more general in nature. MDG-1010 was concerned with the manner in which hazards and risks are to be identified and assessed. MDG-15 was directed at mobile plant but was focused on the plant itself rather than its operating environment. MDG-1009 was the most relevant. 2. "Mineral Industry Safety and Health Risk Management Guideline - MDG-1010" (MDG-1010) [332] was re-published in January 2011. It provided information to assist in the process of risk identification and risk management in the mining industry. [333] MDG-1010 provided details on risk management process, including the necessity for, and requirements when undertaking risk assessments. [334] 3. MDG-1010 also detailed a "Site Risk Assessment Approach" which included: 1. Assessments must take into account different phases in the life cycle of a mine; [335] 2. Informal Risk Assessment; 3. Job Safety Analysis; and 4. Formal Risk Assessment. [336] 1. It is apparent from the 2014 and 2015 WRACs conducted that the defendant was aware of some of the principles contained in MDG-1010. 2. "Mobile Transportable Equipment for Use in Mines – MDG-15" (MDG-15) was most recently published prior to the date of charge in March 2002. [337] It was available to operators of underground mines, including the defendant. It contained a comprehensive explanation of the WHS legislation, the appropriate manner in which to ensure health and safety in relation to the operation of mobile equipment in mines, and the way in which the hierarchy of controls operated. As such, it was available to inform the defendant of the overarching approach to health and safety associated with mobile plant. 3. MDG-15 provided that on the introduction of new equipment to a mine site, an Operational Risk Assessment was to be conducted to identify operational risks associated with that new equipment, [338] with the clear corollary that the introduction of new equipment carries with it the responsibility to ensure that any risks associated with that new plant are identified and addressed by appropriate control measures. 4. It also provided that all supervisors, operators and maintenance personnel should be formally trained, and that that training should cover, as a minimum, inter alia: 1. knowledge and understanding of hazards associated with mobile plant and the required controls; and 2. the need to train workers on what to do when a collision occurs underground, including the need to report collisions and damage to plant. [339] 1. "Managing road and vehicle operating areas in underground coal mines - MDG-1009" (MDG-1009) was republished in October 2015. [340] MDG-1009 contained a table setting out typical hazards, risks and controls as follows: [341] • Roadway design to ensure strata conditions are considered Poor roof, ribs and low clearance Injuries due to impact • Strata support plans outlining the design requirements Strata conditions Type and condition of road floor, MSD injuries • Transport rules steep gradients and poor horizon control Uncontrolled vehicles • Education and training • Fit for purpose equipment 1. From that, it is submitted that any PCBU operating an underground mine, such as the defendant, was therefore alerted to the following from MDG-1009: 1. the obvious hazard arising from insufficient roof clearance in a roadway; 2. the concomitant risk of increasing the chances of collision with the roof (and roof infrastructure) by reason of the condition of the floor strata of roadways; 3. that the hazard of insufficient roof clearance created a risk of injury, including serious injury; 4. ensuring sufficient clearance in mine roadways was an engineering measure to control the risk; and 5. training was also a control measure to minimize the risk of the injury. Industry Publications 1. Of lesser weight, but again in support of the foreseeability of the hazard and the Risk, the prosecutor included in the tender bundle an extract from a text published in 2016 by an expert in underground mining, JM Galvin, titled "Ground Engineering, Principles and Practices for Underground Coal Mining". It identifies that W-straps are prone to tear under high load and that the jagged and sharp edges that result introduce a risk. [342] It is not known whether this text was published prior to the charge date in 2016. However, this extract of the text appears to replicate what was already known about W-straps as roof supports. The Defendant's WRACs 1. The 2014 and 2015 WRACs were undertaken by the LDO Group in respect of the Mine. The defendant was part of the LDO Group and it was the Mine Operator as at 22 January 2016. The Court finds that the defendant knew or ought to have knowledge of the contents of the WRACs. 2013 WRAC 1. As noted above, the 2013 WRAC illustrated that the LDO Group (and by association, the defendant) understood that floor heave would impact roadway clearance. Further, the 2013 WRAC specified controls including the removal of floor heave in critical areas on an as needed basis. Reliance is placed by the prosecutor on at least that part of the 2013 WRAC to support the view that the defendant was aware, at least as early as 2013 that despite the design dimensions of the underground roadways, floor heave could adversely impact roadway clearance. [343] 2014 WRAC 1. In four separate sections of the 2014 WRAC, potential hazards were identified as arising from a collision between mine transport and "Plant, Rib, Infrastructure or Services" causing damage; [344] and also from insufficient roadway dimensions. [345] 2. The 2014 WRAC refers to both MDG-15 and MDG-1009, as well as the UTMP. [346] It specifies its aim to control risks to the health and safety of people at the Mannering Colliery. [347] It specifies that the risk assessment was done in compliance with MDG-1010 (and MDG-1014). [348] It sets out the hierarchy of controls [349] and makes reference to the legislation. [350] 3. At section 5.3, the 2014 WRAC looked at the activity of underground personnel transport. It specified the "hazard" as a collision with Rib, Plant, Infrastructure or Services. W-Straps are part of the underground roadway infrastructure. 4. The risk associated with this hazard was assessed by the LDO Group as having a "moderate" likelihood, which, according to its ranking criteria, denotes that it is "possible; heard of it so it might happen". In the prosecutor's submission, this is too low an assessment of likelihood. It is clear from the evidence, including the photos of the roadway floors, [351] the roadway ceilings; [352] the scratch marks on the roofs of the some of the underground mobile plant, [353] that the roadway clearance was extremely limited in some areas. Indeed, the damage to numerous W-straps, [354] the evidence of the witnesses [355] and the evidence of Ms Turnbull about the particular W-Strap the subject of the Incident [356] leads to the finding that there had been regular collisions with the W-Strap involved in the Incident prior to 22 January 2016. 5. In any event, the 2014 WRAC establishes that the defendant was aware of the likelihood of collision between underground mobile vehicles and roadway roof infrastructure as one which would cause damage. However, the risk was assessed as having "low" consequences and only in terms of financial loss – in the order of $20,000 to $500,000. [357] 6. This assessment undervalues the consequences of risk, particularly because it is self-evident that personnel travelling in a vehicle during a collision could be at risk of injury. This is particularly the case with regard to the design of the underground mobile plant in use as at 22 January 2016: 1. the LHD-031 (driven by Mr Pedersen) had an operator's cabin which was covered overhead but open on all four sides [358] , permitting entry into the operator's area by any obstruction or debris caused by a collision. The very limited clearance between the top of the canopy and the roof is illustrated in the photo at PX4, Tab 58.79; 2. the SMV-003 had an operator's cabin that had a windscreen but was open on both the driver and passenger sides. In addition, any passengers seated in the rear had mesh over their heads whilst seated but there was no covering in the roof of the vehicle along the aisle, allowing entry into that space; [359] 3. similarly, the PJB-2545 man transport had a windscreen but no side protection in the operator's area and no roof covering in the aisle at the rear where workers (passengers in the transport) would be seated. [360] 1. Each of these configurations meant that the workers inside the vehicles were at risk of injury in the event of a collision. 2. The 2014 WRAC specified existing controls as inspections and roadway markings but also stipulated an additional control being the development of an Underground Transport Major Hazard Management Plan. [361] 3. As such, the defendant had not only known about the hazard and the risk, it had known about ways of minimising that risk within the meaning of s 18(c)(ii) of the WHS Act. 4. Further on in the 2014 WRAC, s 6.3 also identified the hazard of collision during the activity of "Transport of equipment and supplies with mobile mine plant". The analysis of the likelihood and consequences of the risk was the same as in s 5.3 (discussed above), with the same under-estimation of likelihood and consequences. Section 6.3 also stipulated the same risk control – developing an Underground Transport Major Hazard Management Plan. [362] 5. Section 12.1 of the 2014 WRAC identified that "less than adequate" roadway dimensions was a hazard during the transport of men or materials underground. [363] In this scenario, the 2014 WRAC ranked the risk as "medium" denoting that it "could cause typical MTC/LTI" [364] . However, the WRAC assessed the likelihood as "unlikely" which the Court finds was likely to have been inaccurate given the narrow roadway dimensions, the height of underground vehicles, and the known potential for floor heave. Whilst there is no evidence as to the dates or even periods during which the W-Straps at the Incident Site and in the vicinity were damaged, the level of oxidisation of the W-Strap the subject of the Incident and the length of the tear in the metal around the bolt hole are indicative of long-term and repetitive damage. 6. Section 12.1 specified two risk controls to address this risk. The first was the development of an Underground Transport Major Hazard Management Plan. The second involved conducting a "roadway height audit of all pipes, HT etc. & set barricades as required to height of current fleet". [365] 7. This is significant as one of the control measures that the prosecutor pleads ought to have been undertaken, is just such an audit. It is proof of the matters in s 18(c)(i) and (ii) of the WHS Act that as early as 2014, the defendant knew not only of the risk but of the means by which it could be minimised. 8. Lastly, section 12.2 of the 2014 WRAC identified the hazard of damage to equipment and infrastructure arising out of less than adequate roadway dimensions. [366] Here, the likelihood was found to be "likely to happen at some point". It is important to note the discrepancy between this anticipated likelihood and the likelihood identified when the hazard was personal injury in section 12.2. Clearly, the likelihood has to be the same for both hazards and it should have been the latter. 9. Again, the same two risk controls were proposed being the development of an Underground Transport Major Hazard Management Plan and a "roadway height audit". An additional control was specified being that an introduction to site document should include the height of plant in it. [367] 10. It follows that from the 2014 WRAC the defendant was aware of the likelihood of the pleaded hazard – that being potential for underground vehicles to collide with and damage W-Straps affixed to the roof of the underground roadways in the Mine. It is also follows that the defendant knew that there were control measures open and available to minimise the risk. 11. The 2014 WRAC set 1 August 2014 as the "action timeframe" for the conduct of the roadway height audit [368] and 10 August 2014 for the development of the Underground Transport Management Plan. [369] Neither had occurred by the date of the charge. Mr McConville gave evidence that he was involved in the preparation and development of the 2014 WRAC but that he was given a direction by the mine manager to stop implementation of it but was not given a reason for that decision. [370] 2015 WRAC 1. On 3 and 26 November 2015, LDO conducted the 2015 WRAC. This appears to be a re-working or a review of the 2014 WRAC because the document contains strikethrough markings and additions in different coloured inks. [371] 2. The 2015 WRAC identified the same activities, hazards, risks and controls as for the 2014 WRAC (discussed above). However, the sections dealing with them were re-numbered. 3. Section 15.3 replicated section 5.3 of the 2014 WRAC. However, the concept of an introduction to site (fit for purpose equipment) was inserted as an existing control leading to the inference that this had been adopted by the defendant in the period between the 2014 WRAC and the 2015 WRAC. In addition, there was a change to the proposed measure to address this risk in that the 2015 WRAC stipulated the development of a "Roads and other vehicle operating areas Principal Mining Hazard Management Plan" (PMHMP), as well as the development of a roadway inspection program and Triggered Action Response Plan (TARP). [372] 4. Section 16.3 replicated section 6.3 of the 2014 WRAC. A notation on this page indicates that the Risk Assessment team considered this risk to be covered by the risk identified in section 15.3. [373] The changes to the proposed controls were the same as those set out in section 15.3. 5. Section 18.1 of the 2015 WRAC was new. [374] This section was directed to the activity of "operating vehicles" and it identified the hazard of "less than adequate roadway height causing injury/damage to mine infrastructure". [375] This section specified the maximum reasonable consequence as "medium" denoting that a consequence could, amongst other things, be the need for medical treatment. The Court finds that this risk ranking was inaccurate, and the consequence ought obviously have been found to include serious injury or death. The likelihood was found to be moderate. 6. The four proposed control measures in section 18.1 were: 1. to develop a "Roads and other vehicle operating areas PMHMP to address the hazard"; 2. conduct "a roadway height audit" and set barricades for the height of the current fleet; 3. consider "marking C/Ts with a safe height indication for vehicles"; and 4. develop a roadway inspection program and TARP. [376] 1. The 2015 WRAC also introduced a dedicated section titled "Roadway Dimensions". However, sections 23.1 [377] and 23.2 [378] replicated sections 12.1 and 12.2 of the 2104 WRAC. The 2015 WRAC stipulated that existing controls as at the date of that WRAC included "Mine Design Planning" and "Intro to site". However, no documents were produced in these proceedings which go to those matters. 2. Sections 23.1 and 23.2 set out proposed additional measures to control the identified risk: 1. to develop a Roads and other Vehicle Operating Areas PMHMP; 2. conduct a roadway height audit of pipes, HT etc and set barricades to the height of the fleet; 3. develop a roadway inspection program and TARP. 1. None of the proposed additional risk controls were implemented prior to the date of the charge. Mr McConville's evidence was that he did not look at the 2015 WRAC until after the Incident and had therefore not commenced any work on it [379] and only did so after the Incident. [380] 2. As with the 2014 WRAC, this amended and updated 2015 WRAC establishes that the defendant was aware of the likelihood of the pleaded hazard/risk and of the means by which to minimise that risk. Tangible Evidence of Risk 1. Mr McConville had concerns about driving the PJB-2545 in relation to height. He said he had to drive in a slow controlled manner because he had made contact with a W-Strap a couple of times when driving. [381] He also stated that the floor heave made the roof height "tight in spots". [382] 2. Mr McClintock's evidence included that floor heave was a known issue in the Mine, that the dimensions of the roadways was "forever changing" and that the roadway surface was undulating. [383] In addition, he was aware that the W-straps in the area of the Incident Site were "rusted, broken and damaged by machinery". [384] Mr McClintock stated that he had been in underground vehicles which had come into contact with the roof, bolts or W-Straps on a number of occasions. [385] 3. Mr Taylor was aware of physical signs of damage to the W-Straps throughout the Mine. [386] 4. Mr Haberecht said that neither LakeCoal nor LDO did any audit to confirm the roadways actually conformed to the minimum 1.9m design height; and that deputy inspections were expected to check the roadway heights in areas of the Mine. [387] However, he did not know of any specific training or instructions that had been provided to deputies to look out for reduced roadway height. [388] 5. The photographs of the roadways show numerous damaged W-Straps in the area of the Incident Site. [389] Mr Taylor also said that there were physical signs of damage to a number of W-Straps throughout the Mine. [390] 6. The photographs taken by the inspectors of the roofs of the PJB-2545 and the LHD-031 shows evidence of scratching and marks consistent with the roofs having come into contact with something. [391] Conclusion as to Foreseeability 1. The Court is satisfied to the requisite standard that the hazard of collision with the roof infrastructure (W-Straps) causing damage was foreseeable and was in fact known by the defendant prior to the date of charge. It also follows that the risk of injury flowing from that hazard was foreseeable. 2. The Court is satisfied that the defendant knew of the means by which to minimise the risk and specifically, knew of the very means pleaded by the prosecutor in the Amended Summons. 3. The Court finds that the foreseeability provisions in s 18(a) and 18(c)(i) and (ii) have been met. Exposure to the Risk 1. The Court is required to consider whether the defendant exposed workers, including Mr Pedersen, to the pleaded Risk on the date of the charge. 2. The Court finds in the affirmative on that issue because of the following circumstances, all of which were present on 22 January 2016: 1. For the reasons set out above, it is clear from the 2014 and 2105 WRACS that there was a risk of collision with the rib, roof and/or infrastructure and that there was a risk of collision due to less than adequate roadway dimensions; 2. The additional controls set out in the WRACs to address those risks had not been implemented; 3. Floor heave was known to reduce roadway clearance; 4. It is clear that many of the W-Straps in the roadways had been damaged by prior collisions, [392] rendering it likely that a further collision would lead to the W-Strap tearing and partially falling into the roadway space; 5. There is a clear inference that the pre-existing vehicles (including the LHD and the PJB) had already collided with the roof of the roadways and the new SMV-003 was 10mm higher than those vehicles; 6. No part of the introduction to site for the SMV-003 took into account its longer distance between the rear axle and the end of the vehicle, and the increased likelihood of it making contact with the roof including the W-Straps as a result of the "see-saw" action over the undulating roadway surfaces; 7. The verbal instruction to Mr McClintock to make sure "it's okay to go up there" [393] combined with the lack of consistent training or instruction about when one was required to stop and make an assessment of any damage if there was contact between the vehicle and the roadway roof meant that any damage to the W-Straps would go unaddressed; 8. The physical configuration of the underground mobile plant meant that operator's cabins in the LHD-031, the PJB-2545 and the SMV-003 had little protection such that any damaged W-Straps hanging down into the roadway could enter that space causing serious injury or death to the operator; and 9. The pitch black darkness in the roadway, [394] whereby the headlights of the vehicles only illuminated the area immediately in front of the vehicles, meant that the ability of plant operators to see whether damaged W-Straps were hanging in the roadway was all but nil. (Certainly Mr Pedersen did not see it) 1. The Court finds that if mobile plant impacts a W-Strap, the risk flowing from the collision would include a risk of serious injury or death. 2. Messrs McClintock, Mr Taylor and Mr Pedersen were directed to travel on Main West to Longwall 7 to retrieve the pump on 22 January 2016 thereby exposing them to the pleaded Risk. 3. Whilst the charge arose out of the Incident in which Mr Pedersen was injured, the focus is not only on the Risk to Mr Pedersen on 22 January 2016. It is clear that the W-Strap was torn and consequently a piece of it hung down into the roadway space and rotated in the outbye direction, by reason of the impacts from the SMV-003. As such, when Mr McClintock and Mr Taylor drove inbye in the PJB-2545 in front of Mr Pedersen, they were also exposed to the Risk. They were just not hit. 4. That may have been because they were travelling further to the right as they drove inbye, or that the PJB-2545 was 50mm shorter than the LHD-031. However, it is not necessary to determine the reason that they were not struck by the damaged W-Strap. It is only necessary to find that they too were exposed to the Risk. 5. For these reasons, the Court is satisfied that workers, including Mr Pedersen were exposed to the Risk on 22 January 2016. Systems Charge 1. The prosecutor is required to establish that there was a reasonably practicable measure that the defendant could and should have implemented as part of its duty under s 19(1) of the WHS Act to address the pleaded Risk. In that regard the prosecutor has pleaded at para 27 of the Amended Summons that reasonably practicable measures were, in relation to the Systems Charge: "…during the Transition Period and prior to allowing any vehicle to enter the underground roadways at the Mannering Colliery: 27.1 develop and implement a PMHMP that addressed the potential hazards identified in sections 5.3. 6.3, 12.1 and 12.2 of the 2014 WRAC and/or sections 15.3. 16.3, 18.1, 23.1 and 23.2 of the 2015 WRAC; and/or … 27.3 conduct an audit of the roadways in the Mannering Colliery being utilised during the Transition Period, to assess the operational roof clearance for vehicles over the road surfaces and thereafter, either: 27.3.1 make level or repair any parts of the road surface that would cause any part of SMV-003 to impact with the roof infrastructure including W-Straps; and/or 27.3.2 refuse to allow any vehicles, in particular SMV-003, which might have impacted with W-Straps on the roof of the said roadways, to be operated within those roadways until such time as it had ensured that they would not impact with the roof infrastructure." 1. The prosecutor did not contend that the pleaded measures would have eliminated the Risk, but that the pleaded measures were suitable and available and would, if implemented, have minimised the Risk. PMHMP 1. A PMHMP is an administrative risk control measure. It is at the lower end in the hierarchy of control measures [395] and does not control the hazard at the source but rather it relies on human performance and supervision of personnel. [396] However, some of actions contained in the PMHMP (as described below) were engineering controls (such as the remediation work). 2. Mr Jason Wagstaffe, a professional consulting engineer, provided an expert report dated 3 July 2018 on which the prosecutor relied. 3. The Court is satisfied that Mr Wagstaffe had the requisite skills, knowledge and experience [397] to provide the opinions in his report. 4. Mr Wagstaffe's expert opinion is that, had a PMHMP been developed, as was identified in both the 2014 and 2015 WRACs, then "the risk of a worker suffering an injury as a result of coming into contact with damaged roof support infrastructure as a result of vertical roadway clearance for mobile plant operating within the mine" would have been minimised. [398] 5. The Court is satisfied that the reasoning and analysis provided by Mr Wagstaffe is sufficient to support that expert opinion. Mr Wagstaffe set out the relevant provisions of the legislation, the relevant provisions of the 2014 and 2015 WRACs and the conservative manner in which he conducted his analysis. [399] Mr Wagstaffe carefully considered the manner in which the Risk would be minimised and concluded: "Whilst it would still be possible for an incident, such as the one which is the subject of the matter, to have occurred, it is the writer's opinion that the likelihood would be considered unlikely." [400] 1. The prosecutor submitted that the development and implementation of a PMHMP would have been a suitable measure to minimise the Risk. In that regard, the prosecutor relied on the expert opinion of Mr Wagstaffe who opined that the PMHMP would have addressed: [401] 1. The setting of minimal vertical roadway dimensions; 2. Development and implementation of a roadway inspection program and associated TARP; 3. Undertaking of regular roadway vertical height audits; 4. Introduction of plant and equipment to site documentation that includes a maximum height of plant specification; 5. Recognition of floor heave as an issue; 6. Recognition that the length of mobile plant/equipment is a significant factor in determining if sufficient vertical roadway clearance is available; [402] 7. Ensuring that no vehicles operated on any underground roadway with less than adequate vertical roof height; 8. Training and assessment program for workers that requires the operators of mobile plant to: 1. stop, assess and report any and all incidents involving hitting the roof; 2. recognise that minor changes to roadway conditions may lead to mobile plant interacting with the mine roof and infrastructure on it; 3. Mine Management Performance measures whereby specific personnel are charged with ensuring that the requirements of the PMHMP are met on a shift/daily basis. 1. Mr Wagstaffe stated that with these measures in place, the following engineering controls would have been carried out: [403] 1. The defendant would have conducted an audit of roof height of roadways; 2. The defendant would have commenced maintenance work, which involved: 1. Grading or digging out areas of insufficient height; 2. The repair of any damaged roof level infrastructure, including W-Straps, that protruded into the roadway; 3. Preventing any mobile plant travelling on roads of insufficient height. 1. The measures to develop and implement a PMHMP were available prior to 22 January 2016. This is evident from the following: 1. the fact that the 2014 and 2015 WRACs were conducted establishes that the defendant had the capacity to engage in the work required to develop a PMHMP prior to January 2016; 2. the 2014 WRAC had proposed that the new Underground Transport Management Plan be implemented by 10 August 2014 [404] and the roadway height audit by 1 August 2014 giving rise to the clear implication that the defendant itself was of the view that such measures could have been done well before 22 January 2016; [405] 3. The 2015 WRAC had proposed that the PMHMP be in place not long after the Incident occurred (22 February 2016); [406] 1. It is apparent from the 2014 and 2015 WRACs that the development of the PMHMP proposed in each of those assessments was to be done in-house by personnel already engaged at the Mine. The defendant regarded the managers and employees at the Mine (including Mr McConville) who were listed in the "Actions" schedules [407] at the end of each of the WRACs, as being competent to undertake those tasks. Further, if that be the case, the cost to the defendant would be absorbed by the salary costs already being paid in respect of those persons. 2. Mr Wagstaffe opined that the development and implementation of the PMHMP was a measure that was available prior to 22 January 2016 and based his opinion on the resources available to the defendant in the form of: * the 2014 and 2015 WRACs; * the UTMP; * MDG1009; * the labour, plant and resources which were readily available to defendant to do the audit. [408] 1. Further, the defendant had access to MDG 1010 which provided detailed guidelines for undertaking a risk assessment in in the minerals industry. [409] MDG 15 had information about operational risk assessments. [410] The defendant also had its own Risk Assessment methodology [411] which would have permitted it to undertake this task, although that is self-evident from the 2013, 2104 and 2015 WRACs. 2. Even if the defendant had obtained external assistance for the preparation of the PMHMP, it would have been a modest cost. Based on his expertise and experience, Mr Wagstaffe calculated the cost: [412] 1. of preparing the PMHMP as about $4,800; 2. of conducting a 1-hour training session for 30 workers at $2,400; 3. of undertaking an initial roadway height audit at $1,840. 1. Mr Wagstaffe sets out the basis of those calculations in his report. [413] 2. The Court notes that Mr Wagstaffe was asked to provide an opinion as to whether some other safe work system would have provided a similar way to address the Risk. Mr Wagstaffe opined that the development of an Underground Transport Hazard Management Plan would have been similar in terms of its effect in addressing the Risk and if developed and implemented effectively, it would have minimised the Risk in the same way as the PMHMP. Again, Mr Wagstaffe set out his reasoning. [414] In addition, Mr Wagstaffe opined that the development of that system was also available as at 22 January 2016 [415] and that the costs were relatively modest. [416] An audit of the roadways (followed by refusal of access to vehicles and remedial action if required) 1. The conduct of a roadway audit (including the exclusion of vehicles prior to such an audit and remedial work if necessary) falls within the implementation phase of the PMHMP (referred to in para 27.1 of the Amended Summons). However, the prosecutor has pleaded the roadway audit as a separate suitable and available measure in addition to or in the alternative to the PMHMP: see para 27.3 of the Amended Summons. 2. Mr Wagstaffe set out a proposed way of conducting such an audit involving two vehicles following each other down the Mine, with a conduit attached to the first vehicle, which, if struck, would be observed by a passenger in the second vehicle, allowing areas of insufficient height to be marked out and remediated. The images at PX6, Tab 125, p 1750 depict the process. [417] 3. At section 5 of his report, Mr Wagstaffe set out the manner in which the findings of the audit could have been implemented including (but not limited to the following steps: 1. The nomination of the types of mobile plant and equipment that may be used underground; 2. Examination of the physical, mechanical and electrical characteristics of each type of mobile plant; 3. Examination of the physical characteristics of the roadways upon which the various types of mobile plant are to be operated; 4. Remediation of any areas within the underground roadways of non-conformance prior to mobile plant to being used in that area. That is, digging out areas where there was less than adequate vertical height. [418] 1. Indeed, immediately after the Incident, the defendant implemented an audit and repairs. This plan was set out in the defendant's Incident Report and is evidenced by a second survey done on 26 March 2016 when such repairs had been done at the Incident Site. [419] The defendant planned the following steps: [420] 1. Roadway clearance surveys were conducted by using spring-loaded height indicators on all four corners of a man transport vehicle with cross members between the indicators to form an accurate profile of the vehicle operating at the maximal allowable height. Any areas of non-compliance would be repaired in a timely manner and entry to those areas would be barricaded until remediation had occurred. Areas that had not been surveyed were to be barricaded until such time as the survey was completed. This audit was conducted on a systematic, and regular basis, and be entered into the Mine's work order system; 2. The "Mannering Colliery Introduction to Site Document" was reviewed to include compliance with specific equipment dimensions as stipulated by the Mine; 3. Remedial work to improve roadway clearances based on surveys and other reports was to be completed as a priority. [421] 1. The practicability of doing the repairs is evidenced by in the fact that the vehicles and workers with the skills to dig out identified areas, as occurred after the Incident, were present at the Mine. [422] A roadway leveller was in fact kept underground in the time leading up to the Incident. [423] Mr Wagstaffe's conclusion was that the measures actually taken by the defendant after the Incident would have minimised the risk of contact of the kind that occurred. [424] 2. The stopping of vehicles from entering an area is a process that occurs in many mines, known as "no-roading". It can be as simple as putting up tape. It occurred as the scene of the Incident prior to the rectification work being conducted. 3. Mr Haberecht said that there were more rigorous checks of the actual height of the underground roadways after the Incident. [425] Mr Roughan said that after the Incident, the roads were graded, given certain heights, and repairs were undertaken. [426] 4. In SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295 the Court addressed the issue of the use of post-Incident conduct by the defendant at [76]: "The defendant contended that the Court could not consider any of the steps taken by the defendant after the incident because it was legally compelled to take those steps by the issue of the Improvement Notices. The defendant did not cite any authority for that proposition. The argument can be simply disposed of on the basis that the Improvement Notices did not require the defendant to take the particular steps taken by it after the incident. The Improvement Notices required it to take steps that were reasonably practicable as required by the Act. The defendant chose to take the particular steps that it did. I can see no reason why the taking of the particular steps by the defendant cannot be some evidence of the fact that they were reasonably practicable. When the Court comes to apply section 18 of the Act, that evidence may not be determinative of the issue. At that point, I must be satisfied beyond reasonable doubt that the steps were reasonably practicable to achieve the provision of a safe working environment at the time leading up to the incident and not with the benefit of hindsight." (Emphasis added) 1. As such, the prosecutor submits that the Court may take into account the fact that the roadway audit, removal of vehicles and remediation work was done by the defendant after the Incident is evidence that it was an available measure, when it comes to consider s 18 of the WHS Act. 2. Mr Wagstaffe opined that development of a safe work system incorporating the audit was a measure available prior to 22 January 2016 by reference to a series of factors including the obligations under the legislation and the resources available to the defendant. [427] 3. In terms of the cost associated with the implementation of the audit, Mr Wagstaffe provided a table estimating the costs for both the audits and the development of the safe work system as follows: 1. Examination of plant and equipment/induction costs at $1,200; 2. A risk assessment relating to each item of plant at $7,200 per item; 3. A damage audit of the transition roadways at $1,200; 4. A roadway height audit at $1,840; 5. An operational risk assessment for the use of the transition roadways at $7,200; 6. Documenting the safe work system at $1,920; 7. Conducting a one-hour training session at $2,400. 1. However, Mr Wagstaffe also opined that these costs would be part of the Mine's normal running costs. [428] 2. There had been no audit, no prohibition on access and no repairs prior to 22 January 2016. 3. Mr Wagstaffe's expert opinion is that such an operational audit would have assisted in minimising the risk. [429] The prosecutor relies on that expert opinion. Reasonably Practicable 1. The Court finds that the pleaded measures in para 27 of the Amended Summons were reasonably practicable measures within the meaning of s 18 of the WHS Act. Causal Nexus 1. Section 32(c) of the WHS Act requires the prosecutor to prove that the failure to comply with the duty exposed Mr Pedersen (and/or others) to a risk of death or serious injury. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury. [430] 2. In this matter, the prosecutor submitted that the Court would be satisfied beyond reasonable doubt that the failure of the defendant to implement the measures pleaded in paras 27.1 and/or 27.3 of the Amended Summons was a significant or substantial cause of workers including Mr Pedersen being exposed to the risk of death or serious injury on 22 January 2016. 3. The relevant question is not whether the defendant's failure to implement these measures was the cause of the injury to Mr Pedersen, but rather whether there was a causal relationship between that omission on the part of the defendant and the Risk to which he and others were exposed. 4. In Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326 [431] at [77] – [79] the Court of Criminal Appeal held: "As earlier stated, the occurrence of an accident or injury is not a precondition to the prosecution of an employer (or other person involved in the management). At the same time, it is necessary, in order to establish a breach, that the particular conduct that was undertaken to cause the risk, or, for that which was not undertaken to prevent the risk, to be particularised so that any defendant is aware of the case which it must meet: Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of NSW & Anor (2006) 66 NSWLR 151; (2006) 154 IR 310; [2006] NSWCA 172; Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339; 159 IR 121; and Kirk v Industrial Relations Commission of New South Wales. Nevertheless, the test is whether that which was done or not done caused the employer to put the safety of employees at risk. The duty is non-delegable: Kirk v Industrial Relations Commission of New South Wales at [10] and [12]; Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672; [1984] HCA 61. Thus, the occurrence of an accident is relevant to the liability of an employer in a very limited way. It may be relevant (assuming foresight) to the existence of a risk and the particular accident may be relevant to disclose the seriousness of the consequences of failing to take steps to ameliorate the risk." (Emphasis added) 1. As such, the Court is not required to be satisfied that if the PMHMP and audit had been implemented that Mr Pedersen would not have suffered his injuries. Rather, this is a minimisation of risk case. The Court has to be satisfied that had the PMHMP and/or audit (and remediation) been implemented, it would have minimised the risk of Mr Pedersen and others being exposed to a risk of death or serious injury. Thus the failure to do so, meant that the defendant had not done everything that was reasonably practicable to do, to ensure that it complied with its health and safety duty. 2. The Court finds beyond reasonable doubt that a reasonably practicable measure that the defendant should have implemented as part of its duty under s 19(1) of the WHS Act to address the pleaded Risk was the development and implementation of a PMHMP and/or an audit and remediation program, and that the defendant failed to do so in breach of its duty, and that that failure exposed Mr Pedersen and other workers to the risk of death or serious injury. Training and Instruction Charge 1. The prosecutor has also pleaded that there was a reasonably practicable measure that the defendant could and should have implemented as part of its duty under s 19(1) of the WHS Act to address the pleaded Risk in relation to the Training and Instruction Charge (at para 28 of the Amended Summons): "28. The Defendant failed to provide training and instruction to workers that provided, if the vehicle they were driving impacted with the roof infrastructure of an underground roadway in any way, they were required to: 28.1 stop the vehicle (if safe to do so) and note the location; 28.2 assess the roof for any damage including to roof infrastructure such as the W-Straps; 28.3 if there was damage to roof infrastructure which may present as an obstacle or hazard to other workers: 28.3.1 make an immediate report to their supervisor; and 28.3.2 isolate or rope off the area to prevent other vehicles or workers entering; and/or 28.3.3 remain at that site until the supervisor attended, who would then arrange for the repair of the roof infrastructure and arrange for the road surface to be levelled or excavated to provide adequate operational roof clearance; 28.4 if there was no such damage to roof infrastructure, obstacle or hazard arising from the impact with roof, to make a report to their supervisor as soon as practicable but before the end of their shift, after which the supervisor would arrange for an assessment of the roof infrastructure and any necessary repairs of the roof infrastructure and/or arrange for the road surface to be levelled or excavated to provide adequate operational roof clearance." 1. These four aspects to the charge may be viewed cumulatively or, in the alterative, individually. 2. The prosecutor does not submit that the pleaded measures would have eliminated the Risk. The following submissions of the prosecutor address the manner in which the pleaded measures were suitable and available and would, if implemented, have minimised the Risk. 3. As at 22 January 2016, training and instruction in relation to what to do underground in the case of a collision between an underground vehicle and the roof (including roof infrastructure) was limited. This is evidenced by: 1. the UTMP contained some instructions about the use of roadways but they were far from adequate to deal with collisions with roof and roof infrastructure and it did not include any of the training and instruction measures pleaded in para 28 of the Amended Summons; 2. the responses provided by the defendant as to what was in place in relation to this topic; 3. the analysis of the training modules undertaken by Messrs McClintock, Mr Roughan and Mr Pedersen prior to 22 January 2016; 4. the simple oral instruction to Mr McClintock to make sure "it's okay to go up there" [432] ; and 5. Mr McClintock's evidence that he thought he was only required to stop if it was a significant collision; and despite being in Mr Taylor's presence shortly after the collisions, neither Mr McClintock, nor Mr Roughan reported the collisions to him. [433] 1. According to the HSEC Coordinator at the Mine, Mr McConville, training delivered to new workers at the Mine consisted of the following: 1. a service induction and familiarisation process; 2. an underground induction process at pit bottom; 3. general challenge testing on the machines at the Mine, to ensure the workers were capable of operating the vehicles; and 4. a walk-through along the secondary roads to allow the workers to become familiar with the underground area of the Mine. [434] 1. Mr McConville said that he did not deliver training to new workers at the Mine, which specifically addressed how to report issues related to suspected low roof clearance or roof damage within the Mine, or situations in which the vehicles make contact with the roof. [435] 2. The prosecutor relies on the expert opinion of Mr Wagstaffe who stated that the training and instruction is (as pleaded) would not have eliminated the risk but rather minimised the risk. In this regard Mr Wagstaffe noted that training and instruction are administrative controls and therefore at the lower end of reliability in terms of the hierarchy of risk controls. [436] 3. Mr Wagstaffe set out his analysis as to why the proposed training and instruction would have assisted. It was a brief analysis but that is understandable in circumstances where it is self-evident that, had instruction and training of this kind been given to Mr McClintock and Mr Roughan, they would have undertaken the assessment of the W-Strap, and it would have been identified as damaged and presenting a hazard. The road would have been cordoned off, and Mr Pedersen would not have driven down the road until the repairs and remediation work had been done. 4. Mr Wagstaffe concluded that in those circumstances, "the risk of an incident, similar to that experienced by Mr Pedersen, would be unlikely to occur". [437] 5. In determining that the pleaded training and instruction was available as at 22 January 2016, Mr Wagstaffe provided his opinion based on factors including cl. 39 of the WHS Regulation and cl 104 of the WHS (Mine) Regulation which required the mine operator to ensure that each worker was provided with suitable and adequate information, training and instruction in relation to the following: 1. hazards associated with the work being carried out by the worker; 2. the implementation of control measures relating to the work being carried out by the worker; and 3. the content and implementation of the relevant parts of the safety management system for the Mine. [438] 1. In relation to the hazards associated with the work – that is driving underground vehicles, the 2014 and 2015 WRACs both identified the risk of collision. 2. Mr Wagstaffe also relied on his personal experience that most mine safety management systems require workers to report any and all incidents to their supervisors. [439] 3. The Court finds that the implementation of the training and instructions pleaded in para 28 of the Amended Summons would have been a suitable measure to minimise the Risk. 4. The prosecutor also submitted that it was an available measure because: 1. the defendant already had a formal system for training workers and in fact did so in relation to other matters prior to 22 January 2016 in respect of Mr McClintock, Mr Roughan and Mr Pedersen; 2. such training could have easily been done in-house but if external providers were required, Mr Wagstaffe estimates the cost of conducting a one-hour training session to accommodate training for 30 workers at $2,400; [440] and 3. the defendant had an informal system of instruction as was evidenced by the walk-through and instructions given by Mr McConville to the newly employed workers, including Mr Pedersen; 4. the defendant had a system of toolbox talks at which such instruction could have been provided. 1. After the Incident, the Incident Report prepared by the defendant, records the following actions being implemented in relation to workforce communication: [441] 1. A "toolbox talk" to the workforce stressing the importance of immediate action required if the roof, rib or any infrastructure was struck by a vehicle, or where roadway clearance had changed for any reason. 'They were instructed to stop, investigate any damage or clearance reduction, repair if within their ability, demarcate and report; 2. A "Roads and Other Vehicle Operative Areas" power point presentation in which the potential for interaction with "fixed structures" and "roof" [442] was set out, as were road dimensions; [443] requiring workers to be vigilant in taking note of any detrimental changes to the roadway conditions and reporting it to a mining supervisor; [444] as well as audits, inspections and incidents hazard reporting; [445] 3. A Roads and Other Vehicle Operative Areas Assessment Form was developed on 21 June 2016 which asked a multiple choice question about taking note of any detrimental changes to the roadway conditions; [446] 4. Future machinery training and assessment was planned to capture "the importance of confirming clearances to roof support and infrastructure and taking remedial action when required". 5. The "Mannering Colliery Contractor Underground Induction Assessment" was drafted which included the following question: [447] "When operating plant and contact is made with low roof, roof bolt tails, cables, pipes, conveyors and other infrastructure what must you do? a. Inspect/report/barricade as required b. Not worry it happens all the time c. Don't stop as you may get stuck d. All of the above." 1. The defendant instituted further training being "The Mannering Colliery Contractor Underground Induction", being a slideshow presentation that included: [448] 1. all accidents and incidents must be reported to a supervisor on site; [449] 2. common hazards underground: Beware of the Roof and Ribs where you are positioned at all times; [450] 3. common hazards underground: [451] * "Beware of low roof, roof bolt tails, cables, pipes, conveyors and other infrastructure when operating plant or walking underground. If Contact is made, INSPECT/ REPORT/ BARRICADE as REQUIRED (Note: discuss previous incident)"; * "Inspect roof and rib conditions and take any action necessary to secure them before commencing work". 1. The defendant developed a Standard: "Movement of Mobile Plant STD 00014" on 3 May 2016. [452] An Assessment Form for that Standard was developed on 15 March 2016 which asked a true/false question: "Any operator who becomes aware of any changes in roadway conditions that cannot be rectified by him/her shall notify a mining supervisor." [453] 1. This post-Incident conduct is not conclusive on the question of the reasonable practicability of the pleaded measures but it is evidence that may be taken into account by the Court in determining that question. [454] Reasonably Practicable 1. By reason of the matters set out above, the Court finds that the pleaded measures in para 27 of the Amended Summons were reasonably practicable measures within the meaning of s 18 of the WHS Act. Causal Nexus 1. The Court finds beyond reasonable doubt that a reasonably practicable measure that the defendant should have implemented as part of its duty under s 19(1) of the WHS Act to address the pleaded Risk was the implementation of training and instruction as set out in para 28 of the Amended Summons. 2. The Court finds beyond reasonable doubt that the defendant failed to implement such training in breach of its duty, and that that failure exposed Mr Pedersen and other workers to the risk of death or serious injury. 3. The Court finds that the averred training would have minimised the Risk. [455] Conclusion and Orders 1. The prosecutor has proven beyond reasonable doubt the essential elements of the offence under s 32 of the WHS Act. 2. The Court finds the defendant guilty of the offence charged. 3. The orders of the Court are: 1. The elements of the offence set out in the Amended Summons filed on 3 June 2019 have been proved beyond a reasonable doubt. 2. The defendant is guilty of the offence. 3. The matter will be listed for sentence on a date suitable to the prosecutor. 4. Direct the prosecutor to notify the liquidator of the defendant of these orders and to supply to the liquidator a copy of this judgment. ********** Endnotes 1. This Regulation was repealed on 1 September 2017 and was replaced the Work Health and Safety Regulation 2017 (NSW) 2. This Act was re-titled Work Health and Safety (Mines & Petroleum Sites) Act 2013 (NSW) as from 1 February 2016 3. This Regulation was re-titled Work Health and Safety (Mines & Petroleum Sites) Regulation 2013 (NSW) as from 1 February 2016 4. MFI1 5. MFI2 6. Orr v LakeCoal Pty Limited [2019] NSWDC 178 7. PX4: Tabs 82, 84, 86, 88, 90, 92, 93, 96, 99 and PX5: Tabs 101, 103, 105, 108 and 111 8. PX4: Tabs 83, 85, 87, 94, 95, 97 and PX5: Tabs: 102, 109 and 110 9. PX3, Tab 56 10. Schedule A to the Prosecutor's Submissions sets out the salient admissions in the report. 11. PX4: Tab 99 and PX5: Tabs 103 and 105 12. PX4: Tab 100; and PX5: Tabs 104, 106 and 107 13. Affidavit of Adam Robert Battagello, affirmed 6 June 2019 14. Schedule B to the Prosecutor's Submissions sets out each of the documents which are relied on as business records pursuant to s 69 Evidence Act, 1995 (NSW) 15. PX7, Tab 131 16. PX1, Tab 3 17. PX1, Tab 3, p 109 18. PX1, Tab 5, p 133 19. PX1, Tab 4, p 123 20. PX1, Tab 6, pp 137, 138 21. PX1, Tab 18. This chart was produced by the Defendant pursuant to a s 155 Notice No: 160314_GD001-01 at PX4, Tab 83, p 1266 22. PX10, Tab 146, p 3614, q. 72 23. PX10, Tab 146, p 3614, q. 72 24. PX10, Tab 146, p 3614, q. 74 25. PX10, Tab 146, p 3706, q. 827 - 828 26. PX10, Tab 146, p 3706, q. 827 - 27. PX10, Tab 146, p 3706, q. 828 28. PX10, Tab 146, p 3706, q. - 829 29. PX10, Tab 145, p 3507, q. 721 30. PX10, Tab 146, p 3615 q. 81 - 84 31. PX10, Tab 146, p 3615 q. 82 32. Affidavit of Adam Robert Battagello, affirmed 14 May 2019, Annexure ARB-1 33. Affidavit of Adam Robert Battagello, affirmed 14 May 2019, Annexure ARB-1 34. Affidavit of Adam Robert Battagello, affirmed 14 May 2019, at [6] 35. PX1, Tab 9, p 144 36. Within the meaning of that term in s 5 of the Mines Reg 37. PX4, Tab 61 38. PX1, Tab 10, pp 146 39. PX1, Tab 2, p 8 40. See PX1, Tab 2 in particular: History & Map at p 8; Consolidated Coal Leases at p 10; Mine geology at p 12; Diagram of the mining operations at p 49; and map/diagram showing the inter-relationships with the other mining operations in the area at p 69 41. PX1, Tab 10, p 145 42. as it was then titled 43. PX1, Tab 11 44. PX1, Tab 11, p 147, [6(i)] 45. PX1, Tab 12 46. PX1, Tab 13, p 150 47. PX1, Tab 15, p 174-175 48. PX10, Tab 146, p 3613 q. 65 49. A mine "Deputy" has statutory functions including inspections pursuant to cl 10 of Schedule 10 to the Mines Reg 50. PX10, Tab 146, p 3615 q. 86 51. PX1, Tab 2, p 9 52. PX1, Tab 2, p 8 53. PX10, Tab 145, p 3420, q. 51 & p 3427, q. 112 54. PX10, Tab 145, p 3430 q 129-134 55. T D2 p 111 L 49 to p 112 L 3 56. PX1, Tab 16 57. PX1, Tab 13, p 150 58. McConville: T D2 p 78 L 10-12; McClintock: T D2 p 89 L 16-24 & p 94 L 39-46; Haberecht: T D2 p 115 L 21-23 59. PX5, Tab 123, pp 1584-1587, PX10, Tab 151, p 4057, q. 22; PX8, Tab 140, p 2637, q. 77 60. PX5, Tab 123, pp 1584-1587 61. See 2013 WRAC at PX2, Tab 42 p 591 – floor heave controlled by removal 62. PX2, Tab 38 63. Haberecht: T D2 p 112 L 13-19; see answer to s 155 Notice at PX4, Tab 83, p 1265 Question 1 64. PX2, Tab 38 p 516 and also 509 65. PX2, Tab 38 p 508 66. See, for example, PX4, Tabs 58.62, 58.64 and 58.66 67. PX5, Tab 121, p 1475 68. PX5, Tab 121, p 1475 69. Visible in photographs at PX4, Tabs 58.62, 58.64 and 58.66 70. PX5, Tab 121, p 1475 71. McConville: T D2 p 78 L 21-24; 72. McClintock: T D2 p 94 L 48 to p 95 L 2 73. PX3, Tab 56, p 984 74. PX10, Tab 145, p 3440, q. 202 75. PX10, Tab 145, p 3440, q. 202 76. PX4, Tab 87, p 1279 77. See photos at PX4, Tabs 58.73 – 58.76, 58.79 78. PX4, Tab 58.80 79. PX11 Tabs 147-150 80. SMV stands for Specialised Mine Vehicle. 81. PX1, Tab 21 82. PX10, Tab 145, p 3445, q. 238 83. PX10, Tab 145, p 3444, q. 235 84. PX10, Tab 145, p 3444, q. 235 85. PX1, Tab 26 86. PX2, Tab 27 – see photos at p 316 and 419 87. PX10, Tab 145, p 3444, q. 235 88. PX10, Tab 145, p 3440, q. 206; PX1, Tab 21 89. PX1, Tab 20, p 263 90. PX1, Tab 23 91. PX2, Tab 29 92. PX2, Tab 38, p 511 93. PX1, Tab 25, p 300 94. PX9, Tab 144, p 2908, q. 410 -p.2909- 411 95. PX5, Tab 104, p 1372 96. T D2 p 82 at 30 - 33 and p 116 at 40 - 44 97. PX5, Tab 104, p 1375 98. PX5, Tab 104, p 1391 99. T D2 p 83 at 19 - 23 100. PX9, Tab 144, p 2871, q. 70 101. See answer to s 155 Notice at Px-4, Tab 87, p 1280 102. PX4, Tab 94, p 1328, Item 3 referencing questions 1 and 3 in the s 155 at Tab 93, p 1326 103. PX8, Tab 140, p 2638, q. 81-87 104. T D2 p 95 at 11 - 14 105. T D2 p 112 - 113 106. PX1, Tab 17 pp 201-233 107. PX1, Tab 17 pp 234-239 108. PX1, Tab 17 pp 240 - 244 109. PX1, Tab 17 pp 250-258 110. PX1, Tab 17 p 235 at section 2 111. PX1, Tab 17, p 235 112. PX1, Tab 17, p 252 113. PX1, Tab 17, p 252 114. PX1, Tab 17, p 254 115. PX10, Tab 146, p 3609 q. 29 116. PX9, Tab 144, p 2866, q. 30 117. PX9, Tab 144, p 2866, q. 36, 37 118. PX10, Tab 145, p 3417, q. 25 119. PX10, Tab 145, p 3416, q. 21 120. PX8, Tab 141, p 2729, q. 34 121. PX8, Tab 141, p 2729, q. 26; Offer of Employment is at PX2, Tab 35, p.492 122. PX8, Tab 143, p2821, q. 50 123. PX8, Tab 140, p 2631, q. 39 124. PX8, Tab 140, 2631 q.35-37 125. PX1, Tab 17, labour services rates: p 235-236; secondees: p 254 126. PX8, Tab 139, p 2441, at [11-20] 127. PX8, Tab 139, p 2442 at [21] 128. PX2, Tab 32, p 480 129. PX2, Tab 33, p 487 – second entry from the bottom 130. PX8, Tab 139, p 2442 at [23]-[27] 131. PX8, Tab 139, p 2442 at [24] 132. PX8, Tab 139, p 2443 at [28] 133. PX4, Tabs 60 & 61 134. PX3, Tab 58.9 135. See for example, PX7, Tab 132, p 2094 at [66]; PX7, Tab 135, p 2384 at [44] [Flower's statement] 136. PX3, Tab 56, p 986 137. PX12, Tab 151, p 4055, q. 7 138. T D1 p 64 L 22 139. T D1 p 64 L 25 - 37 140. PX8, Tab 143, P. 2820, Q 37 and annexure GDMR001 (at p 2838); see also T, D2, p 97, L 15-20 in reference to PX13 141. T D1 p 64 L 7 142. PX8, Tab 141, p 2744, q. 165; PX8, Tab 142, p 2821, q. 123; T D1 p 65 L 46-47 143. T D1 p 65 L 22; T D2 p 98 L 50 144. T D1 p 65, L 20-22; T D2 p 99 L 5-8 145. PX8, Tab 141, p 2730, q. 42 146. PX4, Tab 100, p 1356 (item 1) 147. PX8, Tab 140, p 2633, q. 58, 59; Mr Taylor gives another account of what occurred about the relevant time at PX8, Tab 140, p 2652, q. 216-259 148. PX8, Tab 140, p 2634, q. 59; PX8, Tab 142, p 2806, q. 60-62 149. PX8, Tab 141, p 2738, q. 112 150. PX8, Tab 141, p 2744, q. 165; T D2, p 99 L 5 -8 151. PX5, Tab 122 1514-1516 152. PX5, Tabs 121 and 122 153. PX5, Tab 122, p.1523 154. PX5, Tab 122, p.1521 155. See photo of torn bolt hole at PX3, Tab 58.40 and photo of whole length showing bolt hole at Tab 58.37 156. PX3, Tab 56, p.985 157. PX3, Tab 56, p.991 158. PX3, Tab 58.18 159. Pederson - PX8, Tab 139, p 2443, at [34]; Taylor - PX8, Tab 140, p 2634, q.59 160. T D1 p.47 at L 21–24 161. PX8, Tab 139, p 2488, q. 79 – 81 162. T D1, p.47 L38–39 163. T D1, p.48 L 9 164. PX4, Tab 58.75 165. McClintock - PX8, Tab 141, p 2749, q. 209; Taylor - PX8, Tab 140, p 2634, q.59 166. PX8, Tab 139, p 2445 at [52] 167. PX8, Tab 139, p 2445 at [53] 168. T D1 p.48 L 23 169. T D1 p.48 L 29 170. See photographs taken at the Hospital of the laceration: PX4 , Tabs 58.83 & 58.84 171. PX8, Tab 139, p 2445 at [57-61] 172. Taylor - PX8, Tab 140, p 2634, q.59, 60; Pederson - PX8, Tab 139, p 2446 173. PX4, Tab 89 174. PX4, Tab 91, pp 1304; 1318 175. PX4, Tab 91, p 1305 176. PX8, Tab 139, p 2448 at [84,85] 177. T D1 p.48 L 37 178. T D1 p.48 L 44 179. T D1 p.49 L 8–10 180. PX5, Tab 115 181. The chainage points for each of these survey markers is at PX4, Tab 70 182. PX–4, Tab 64, p 1102 183. PX–4, Tab 64, p 1104 184. PX4, Tab 64, p 1105 185. PX5, Tab 123 186. Mr Burns' expertise is set out at PX5, Tab 123, p 1562 and his CV is Appendix B to the report at pp1603 to 1612 187. PX5, Tab 123, p 1567 188. Similar diagrams were produced by the Defendant's surveyor – see PX4, Tab 74 showing cross-sections of the roadway 189. PX5, Tab 123, p 1583 190. PX4, Tab 72 191. See Figure 1.1 at PX5, Tab 123, p 1584 192. PX5, Tab 123,p.1563 193. PX5, Tab 123, p 1565 T [6.5] 194. PX5, Tab 123, p 1569 at 8.12 – 8.13 195. PX5, Tab 123, p 1569 at 8.14 – 8.16 196. PX5, Tab 123, p 1585 197. PX5, Tab 123, p 1571 at 8.21 – 8.23 198. PX5, Tab 123, p 1586 199. PX5, Tab 123, p 1572 at 8.29- 8.30 200. PX5, Tab 123, p 1587 201. PX5, Tab 123, p 1573 at 8.36-8.37 202. PX5, Tab 122, p 1532- 1537 203. PX5, Tab 122, p 1528 204. PX3, Tab 58.30 205. PX3, Tabs 58.19, 58.21, 58.22, 58.23, 58.28 and 58.29. 206. PX5, Tab 122 at p 1521 at 8.6 207. PX5, Tab 122 at p 1522 at 8.8 and 8.9 208. PX5, Tab 122 at p 1522 at 8.13 209. PX5, Tab 121 at p 1482 at Section 3 210. PX5, Tab 124 211. Dr White's qualifications are set out at PX5, Tab 124, p 1663-1665 and his CV is Appendix A to the report at pp 1698 to 1706 212. PX5, Tab 124, p 1658 at [6] and [7]: see analysis at pp 1670 213. PX7, Tab 133, p 2339 at [11] 214. PX5, Tab 115 215. PX7 Tab 113, pp 2340-2341 at p [19] – [21] 216. PX7 Tab 113 p 2341 at [22] 217. PX7 Tab 113 p 2341 at [28] 218. T D1 p 58, L 32–33 219. See PX8, Tab 140, p 2714; 220. T D1 p 58, L 35-38 221. T D1 p 58, L 49-50; T D1 p 58 L 49-50 222. PX5, tab 116 223. T D1 p 45, L 5-8; T D1 p 62, L 25-49; T D2 p 91 L 9-11 224. PX3, tab 57 225. T D1 p 45, L 5-8; T D1 p 51, L 26-41; T D2 p 91, L 24-28; T D1 p 63, L 1-11; T D2 p 77 L 11-38; T D2 p 111 L 24-44; Affidavit of David William Walker affirmed 5 June 2019 at [3] 226. PX7, Tab 135, p 2388 at [74] – [76] 227. PX7, Tab 135, p 2412 228. PX3, Tab 58.12 and Tab 58.45 229. PX7, Tab 132, p 2100 at [101] 230. PX7, Tab 132, p 2102 at [112-116] 231. PX5, Tab 122, p.1528 [Figure 10 of Turnbull report] 232. SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 at [6] – [7] citing Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579-580 per Dawson J (Mason CJ, Toohey and Gaudron JJ agreeing) 233. SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 at [7]; and see: s 20 of the Criminal Procedure Act 1986 234. See: s 17 of the WHS Act 235. Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. 236. Thiess Pty Ltd v Industrial Court of NSW [2010] NSWCA 252; (2010) 78 NSWLR 94 at [67] – [67]. 237. Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531 at [13] 238. Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, Basten JA (with whom Hoeben CJ at CL and Walton J agreed) at [53] 239. R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94 at [67]. 240. SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 at [65] citing with approval Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 [3]-[6]. 241. Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [37] 242. Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338 at [127] 243. Slivak v Lurgi (Australian) Pty Ltd (2001) 205 CLR 304 at [53] per Gaudron J 244. Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [75] 245. WorkCover Authority of NSW v Atco Controls Pty Ltd [1998] NSWIRComm 200; (1998) 82 IR 80 at 85 per Hill J and Inspector Ch'ng v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32]. 246. WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 247. PX10, Tab 146, p 3623 q.138, 139 248. PX2, Tab 40 249. This is another document which establishes the intertwined nature of the business relationship between the Defendant and other companies in the LDO Group, including LDO. For example, this document shows that at the time of the handover, the Mine was not being operated by the Defendant but rather by LDO, who, apparently later went on to be the company designated by the LDO Group to supply labour to the Mine. 250. PX2, Tab 38 251. That it was utilised was admitted in a response to a s155 notice, see PX4, Tab 83, p 1265 252. PX2, Tab 38, p 516 253. PX2, Tab 38, p 516 254. PX8, Tab 140, p 2638, q. 81-87; T D2, p 95, L 11 - 14 255. T D1 p 53 L 1 -10 256. PX2, Tab 38, p 516 257. PX2, Tab 38, p 511 258. PX3, Tab 47 259. PX3, Tab 47, p 900 at (q) 260. PX3, Tab 47, p 901 at (r) 261. See Deputy's reports at PX3, Tab 52; T D1 p 53 L 17 to p 56 L 27 262. PX2, Tab 42 263. PX2, Tab 42, p 591 264. PX2, Tab 42, p 597 (Note: "U/G" means underground and "LTA" means less than adequate.) 265. PX2, Tab 43 266. PX3, Tab 45 267. PX10, Tab 146, p 3623, q.137 268. PX3, Tab 45, pp 858 - 868 269. T D2 p 115, L 1-3 270. T D2 p 114, L 49-50 271. T D2 p 80, L 18-24 272. PX2, Tab 41. This document also shows the intertwined nature of the business – see Section 2 on p 556 273. PX2, Tab 41, p 563 274. PX2, Tab 41, p 564 275. T D1 p 82, L 35-42 276. PX1, Tab 25, see, in particular, p 300 277. PX2, Tab 39, (p 564) 278. PX2, Tab 36, p 496 – shows that Mr McClintock was not trained in Risk Management Assessment until 6 May 2016 279. PX2, Tab 37, p 498-499 – shows that Mr Roughan was never trained in Risk Management Assessment 280. PX2, Tab 34, P.486 (at about point 8) 281. PX 2, Tab 34, p.489 (at about point 5) 282. PX2, Tab 44 283. PX3, Tab 46 284. PX2, Tab 28. P. 446 285. PX5, Tab 101, p 1365 286. PX5, Tab 102, p.1366 287. PX12, Tab 156 288. PX2, Tabs 36, p 494 & Tab 37 289. PX2, Tab 46, pp 879 and 887 290. PX2, Tab 44, p 725 291. PX12, Tab 152 292. PX12, Tab 153 293. PX8, Tab 141, p 2755, q. 265 294. PX8, Tab 141, p 2743, q. 151; T, D2, p 93, L [6] - [26] 295. PX10, Tab 145, p 3494 at q. 611-612 296. PX10, Tab 146, p 3627-3628 qs 173-174 297. T, D1 p 45, L 37-50 and p 46 1- 2 ; see also training records at PX2, Tab 34, p 485 - 487 298. PX2, Tab 34, p 486 (at about point 8) 299. PX2, Tab 34, p 489 (at about point 6) 300. PX2, Tab 34, p 487 (at about point 5) 301. PX2, Tab 34, p 490 (at about point 5) 302. PX2, Tab 34, p 487 (at about point 9) 303. PX2, Tab 34, p 488 at about point 2) 304. PX2, Tab 34, p 495 (at about point 6) 305. PX2, Tab 34, p 489 (at about point 2) 306. T D1 P. 46, L 12-23 307. PX2, Tab 34, p 489 (at about point 3) 308. PX2, Tab 34, p 495 (at about point 5)) 309. PX2, Tab 34, p 490 (at about point 1) 310. PX2, Tab 34, p 490 (at about point 5) 311. PX2, Tab 34, p 489 (at about point 5) 312. PX2, Tab 34, p 489 (at about point 7) 313. PX8, Tab 139, p 2443 at [28] 314. PX2, Tab 36, p 495 (at about point 3) 315. PX2, Tab 36, p 496 (at about point 3) 316. PX2, Tab 36, p 495 (last entry) 317. PX2, Tab 36, p 496 (at about point 5) 318. PX2, Tab 36, p 495 (at about point 7) 319. PX2, Tab 36, p 495 (at about point 8) 320. PX2, Tab 36, p 497 (last entry) 321. PX12, Tab 151, p 4055, q. 7 322. PX2, Tab 37 323. PX8, Tab 142, p 2803, q. 35-42 324. PX8, Tab 143, p 2825, q. 83 325. T D1 p 52 at 15 326. T D1 p 56 at 6-7 327. T D1 p 56 at 11-21 328. T D1 p 56 at 22-31 329. T D1 p 52 at 22-49 330. T D1 p 53 at 1-15 331. Workcover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381 (point 8) 332. PX6, Tab 126, p 1838 333. PX6, Tab 126, p 1843 334. PX6 Tab 126 p 1850 at 2.2 335. PX6, Tab 126, p 1905 at 4.2.2. 336. PX6 Tab 126 pp.1906-1907 at 4.2.4 – 4.2.6 337. PX6, Tab 127, p 1956 338. PX6, Tab 127, p 1967 at 2.4.2 339. PX6, Tab 127, p 1968 340. PX6, Tab 128, p 2015 341. PX6, Tab 128, p 2027 342. PX6, Tab 129, p 2052 343. PX2, Tab 42 at p 591, Section 2.9 344. PX2, Tab 43, p 656 (section 5.3), p 664 (section 6.3) 345. PX2, Tab 43, p 683 (section 12.1) and p 684 (section 12.2). 346. PX2, Tab 43, p 604 347. PX2, Tab 43, p 605 348. PX2, Tab 43, p 606 349. PX2, Tab 43, p 609 350. PX2, Tab 43, p 611 351. PX4, Tabs 58.63 - 58.65 352. PX3, Tabs 58.5 - 58.9 353. PX4, Tabs 58.69 - 58.71 and 58.77 - 58.78 354. PX4, Tabs 58.53 - 58.61, 355. T D2 p 77, L 16-28; T D2, p 95 L 4-9 356. PX5, Tab 121, p.1478 357. PX2, Tab 43, p 608 358. See photo of rear roof at PX4, Tab 58.73 to 58.76 359. See photo of rear roof at PX4, Tab 58.66 360. See photo of side view at PX4, Tab 58.80 and specifications/photo at PX2, Tab 31 361. PX2, Tab 43, p 656 362. PX2, Tab 43, p 664 363. PX2, Tab 43, p 683 364. Medical Treatment Case/Lost Time Injury 365. PX2, Tab 43, p 683 366. PX2, Tab 43, p 684 367. ibid 368. PX2, Tab 43, p 693 369. PX2, Tab 43, p 692 370. T D2, p 78 at 39 to p 79 at 21 371. PX3, Tab 45 372. PX3, Tab 45, p 813 373. PX3, Tab 45, p 822 374. PX3, Tab 45, p 832 375. ibid 376. PX3, Tab 45, p 822 377. PX3, Tab 45, p 850 378. PX3, Tab 45, p 851 379. T D2 p 80 L 17-24 380. T D2 p 80 at 14 to 24 381. T D2 p 77 L 16-21 382. T D2 p 89 L 16-24 383. T D2 p 94 at 28-46 384. T D2 p 94 at 48 to p 95 at 3 385. T D2 p 95 at 4 to 9 386. PX8, Tab 140 p 2648 q 179 387. T D2 p 112 L 42-48 388. T D2 p 113 L 20-23 389. PX4, Tabs 58.53 to 58.62 390. PX8, Tab 140, p 2648, q. 179 391. PX4, Tab 58.77: Photograph showing the top of the canopy on LHD-031; See PX4, Tab 58.82 showing the top of the canopy on PJB-2545 showing signs of previous damage 392. PX5, Tabs 58.53 – 58.61 393. PX12, Tab 151, p 4055, q. 7 394. See photos at Tab PX3, Tabs 58.1 to 58.4 395. PX6, Tab 125, p 1744 396. PX6, Tab 125, p 1745 397. See expertise at PX6, Tab 125, p 1722 and his CV at Appendix A on pp 1776-1791 398. PX6, Tab 125, p 1746 399. PX6, Tab 125 at pp 1735- 1746 400. PX6, Tab 125 at p 1748 401. PX6, Tab 125, pp 1745 - 1747 402. See PX5, Tab 124, p 1678 403. PX6, Tab 125, pp 1742 - 1748 404. PX2, Tab 43, p 690 405. PX2, Tab 43, p 693 406. PX3, Tab 45, p 861 407. 2014 WRAC: PX2 Tab 43 pp 690-694; 2015 WRAC: PX3, Tab 45, pp 858 - 867 408. PX 6, Tab 125, pp 1749 – 1750 409. PX6, Tab 126 410. PX6, Tab 127 at p 1967 411. PX4, Tab 75 412. PX 6, Tab 125, p 1751 413. PX6, Tab 125, pp 1751-1752 414. PX6, Tab 125, at section 3: pp 1753 -1759 415. PX6, Tab 125, pp 1759 - 1762 416. PX6, Tab 125, pp 1762-3 417. PX6, Tab 125, p 1750 418. PX6, Tab 125, p 1764 419. PX8, Tab 140, q. 435; PX9, Tab 144, p 1920, q. 501 - 516 420. PX1, Tab 56, p 990 421. PX9, Tab 144, p 1920, q. 501 - 516 422. PX9, Tab 144, p 1920, q. 501 - 504 423. PX4, Tab 87, p 1282, item 32 424. PX6, Tab 124, p.1685 at [122] 425. T D2 p 117 L 48-50 426. T D1 p 65 L36-41 427. PX6, Tab 125, p 1766 428. PX6, Tab 125, p 1768 at para [94] 429. PX6, Tab 125, p 1770 at para [103] 430. Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127], [130]. 431. Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326 - in the context of appeals in relation to offences under s 8(1) of the Occupational Health and Safety Act 2000 (NSW), 432. PX12, Tab 151, p 4055, q. 7 433. T D2, p 93, L 6-26 434. PX9, Tab 144, p 2928, q. 568 435. PX9, Tab 144, p 2928, q. 568 – 572] 436. PX6, Tab 125, p 1772 at [111] 437. PX6, Tab 125, p 1773 at [113] 438. PX6, Tab 125, p 1773 at [114] 439. PX6, Tab 125, p 1773 at [114] second dot point 440. PX6, Tab 125, p 1774 441. PX3, Tab 56, p 982 442. PX4, Tab 77, p 1202 443. Ibid at p 1207 444. Ibid at p 1213 445. Ibid at p 1218 446. PX4, Tab 79 p 1252 447. PX4, Tab 80, p 1255 448. PX4, Tab 76 449. PX4, Tab 76, p.1184 450. PX4, Tab 76, p.1193 451. PX4, Tab 76, p.1194 452. PX4, Tab 78 at p 1226, at 6.1.3; not drive under overhead structure where unaware of clearance limits: p 1234 at section 7.1. 453. PX4 Tab 81 p 1256 454. Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295 at [76] see above 455. PX6, Tab 125, pp 1772-1773 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: 26 July 2019