Rodney Morrison v United Collieries Pty Limited [2003] NSWIRComm 36 (26 February 2003)

Last Updated: 7 March 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Rodney Morrison v United Collieries Pty Limited [2003] NSWIRComm 36

FILE NUMBER(S): IRC 4706 and 4707

HEARING DATE(S): 21/05/2002, 22/05/2002, 23/05/2002, 24/05/2002, 27/05/2002, 28/05/2002, 29/05/2002, 30/05/2002, 10/12/2002, 11/12/2002, 12/12/2002

DECISION DATE: 26/02/2003

PARTIES:

PROSECUTOR:

Rodney Morrison

DEFENDANT:

United Collieries Pty Ltd

(ACN 001 990 209)

JUDGMENT OF: Schmidt J

LEGAL REPRESENTATIVES

PROSECUTOR:

Ms AJ Katzmann SC with Ms KT Nomchong of counsel

SOLICITORS:

Moray & Agnew

DEFENDANT:

Mr RJ Buchanan SC with Ms LM McManus of counsel

SOLICITORS:

Sparke Helmore

CASES CITED: Boral Gas (NSW) Pty Ltd v Magill [1993] 32 NSWLR 501

Coopers Brewery Ltd v Panfida Foods Limited (1992) 26 NSWLR 738

Cullen v State Rail Authority (NSW) (1989) 31 IR 207

De Romanis v Sibraa [1977] 2 NSWLR 264

Eastman v The Queen (1997) 76 FCR 9

Rodney Morrison v Tahmoor Coal Pty Ltd [2002] NSWIRComm 327

Stanton v Abernathy (1990) 19 NSWLR 656

State Rail Authority of New South Wales v Dawson (1990) 37 IR 110

WorkCover Authority of New South Wales v Crown in Right of the State of New South Wales (Police Service of New South Wales (No 2) (2001) 104 IR 268

WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248

WorkCover Authority of New South Wales (Inspector Mauger) v SWR Constructors Pty Ltd [2000] NSWIRComm 115

WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Pty Ltd [2000] NSWIRComm 221

LEGISLATION CITED: Coal Mines Regulation Act 1982

Evidence Act 1995

Occupational Health and Safety Act 1983

JUDGMENT:

- 33 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Schmidt J

DATE: 26 February 2003

MATTER NUMBER IRC 4706 OF 2001

RODNEY MORRISON v UNITED COLLIERIES PTY LTD

Prosecution under s15(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 4707 OF 2001

RODNEY MORRISON v UNITED COLLIERIES PTY LTD

Prosecution under s15(1) of the Occupational Health and Safety Act 1983

INTERLOCUTORY JUDGMENT

1 This judgment deals with a no case to answer submission advanced by the defendant at the close of the prosecution case, as well as a submission that the charges were defective and should be dismissed.

2 These prosecutions were brought under s15(1) of the Occupational Health and Safety Act 1983. The breaches alleged and the particulars given were:

IRC 4706 of 2001 -

'On or about 20 July 1999 at the United Colliery Warkworth in the State of New South Wales the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, in particular Kevin William Downes, in that it failed to maintain a place of work in a condition that is safe and without risks to health contrary to s.15(1) of the Occupational Health and Safety Act 1983.

The Particulars of the charge are:

(a) Panel 413 at the United Colliery at Warkworth ("Panel 413") is located in an area where there are geological faults and weaknesses;

(b) As at 20 July 1999, there were seven pillars across Panel 413 between the 24th and 25th cut;

(c) As at 20 July 1999, the rib conditions in Panel 413, particularly those in the central pillars were known to be weak and/or unstable;

(d) Prior to 20 July 1999, safety concerns in relation to the unstable condition of ribs in Panel 413 had been the subject of discussion at meetings of the Occupational Health and Safety Committee at the United Colliery at Warkworth;

(e) Prior to 20 July 1999, unstable rib conditions in Panel 413 had been the subject of Deputies Production Inbye Reports at the United Colliery at Warkworth;

(f) Prior to 20 July 1999, the Defendant, through its officers, employees or agents had had a number of meetings and had received several pieces of correspondence from Mr Ian Anderson, Senior Inspector of Mines in relations to rib instability in panel 413;

(g) There is a risk of rib spalls during pillar extraction;

(h) The Undermanager had authority to delay scheduled maintenance and continue pillar extraction until a stable position was reached. No such decision was taken by the Undermanager on 20 July 1999.

(i) Scheduled maintenance took place on the Mobile Roof Support 1 ("MRS1") at the commencement of the day shift on 20 July 1999;

(j) Shortly before the maintenance had commenced on MRS1, a rib spall occurred on the left hand side of the cut through facing inbye between the 24th and 25th cut. This was at about 7.30am. The rib spall left a large amount of debris and it was therefore impossible to reverse MRS1 to a position underneath the roof supports on its own motion. A chain was connected to MRS1 and it was towed back from its original position flush against the goaf to a position which allowed access around the MRS1 but it was not under the supported roof;

(k) Mr Kevin William Downes was performing maintenance duties on the MRS1 at about 10.15am;

(l) A large rib spall occurred crashing Mr Downes against the side of the MRS1.

(m) Mr Downes suffered serious bodily injuries.

IRC 4707 of 2001 -

'On or about 20 July 1999 at the United Colliery Warkworth in the State of New South Wales the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, in that it failed to provide and maintain a safe system of work that prevented Kevin William Downes from working in an area of the mine where the ribs were weak and/or unstable contrary to s.15(1) of the Occupational Health and Safety Act, 1983.

The Particulars of the charge are:

(a) Panel 413 at the United Colliery at Warkworth ("Panel 413") is located in an area where there are geological faults and weaknesses;

(b) As at 20 July 1999, the rib conditions in Panel 413, particularly those in the central pillars were known to be weak and/or unstable weak;

(c) There is a risk of rib spalls during the pillar extraction;

(d) The Undermanager had authority to delay scheduled maintenance and continue pillar extraction until a stable position was reached. No such decision was taken by the Undermanager on 20 July 1999;

(e) Scheduled maintenance took place on the Mobile Roof Support 1 ("MRS1") at the commencement of the day shift on 20 July 1999;

(f) Shortly before the maintenance had commenced on MRS1, a rib spall occurred on the left hand side of the cut through facing inbye between the 24th and 25th cut. This was at about 7.30am. The rib spall left a large amount of debris and it was therefore impossible to reverse MRS1 to a position underneath the roof supports on its own motion. A chain was connected to MRS1 and it was towed back from its original position flush against the goaf to a position which allowed access around the MRS1 but it was not under the supported roof;

(g) Mr Kevin William Downes was performing maintenance duties on the MRS1 at about 10.15am;

(h) A large rib spall occurred crushing Mr Downes against the side of the MRS1.

(i) Mr Downes suffered serious bodily injuries.

3 The prosecutions arose out of the events of 20 July 1999, when Mr Downes, the deputy in charge of underground mining operations at the mine, was injured after being buried by a fall of coal. Mr Downes was working near a mobile roof support machine, (an 'MRS' machine), which was being repaired by a fitter also employed by the defendant, Mr Dodds. The machine had developed a serious oil leak to which Mr Dodds was attending during the day shift, a scheduled maintenance shift.

4 There was no mining production work underway at the time. The MRS machine was one of three such machines located in Panel 413 at the 7 heading between the 24th and 25th cut throughs of the mine. Extraction of coal in that heading had commenced, but not concluded, at the commencement of the day shift.

5 It was the prosecution's case that Mr Downes was injured by a rib spall which occurred while he was assisting Mr Dodds to clean coal out of the MRS machine, which had collected there. The work was conducted at a time and place which was unsafe and which put employees, particularly Mr Downes at risk of injury, contrary to the obligations imposed upon the defendant by the Act.

The evidence

6 In the prosecution case evidence was led from Mr Terrence Dodds, fitter/mechanical mine worker; Mr Kevin Downes, supervisor miner worker; Mr Michael Niven, production mine worker; Mr Gary Dixon, retired mechanical engineer; Mr Bradley Phillips, production mine worker; Mr Bradley Morgan, coal miner; Mr Troy Guthrie, mechanical mine worker; Mr Anthony Sutherland, mine manager; Mr Peter Grey, self employed; Mr Beatty, retired mining engineer, Inspector of Mines; and Mr Anderson, Senior Inspector of Coal Mines. Various documents were tendered, including exhibit 1 which contained a number of admissions made by the defendant:

1. The Defendant is and was at all material times, a corporation, capable of sued and being sued.

2. As at 20 July 1999 the Defendant was the operator of the United Colliery at Warkworth, an underground coal mine, to which the Coal Mines Regulation Act 1982 applies.

3. On 20 July 1999 Kevin William Downes was employed by the Defendant as a deputy (also known as supervising mine worker), carrying out the role and having the statutory responsibilities of a deputy within the meaning of the Coal Mines Regulation Act 1982.

4. On 20 July 1999 Kevin William Downes was injured at work at the United Colliery.

5. Mr Downes' injuries were caused by a rib spall at 413 panel at approximately 10.15am.

6. At the time he was beside a mobile roof support (MRS) which had been removed from its operating position to repair an oil leak.

7 The evidence was that the risk of rib spall was ever present at this mine. Various obligations as to safety matters were imposed upon the defendant and a number of its managerial employees, including Mr Downes, by the Coal Mines Regulation Act 1982 and the regulations made there under. In accordance with those provisions, Mr Downes, the deputy on duty underground on the day of the accident, had particular safety obligations, including in relation to the risk of rib spall.

8 The risk of rib spall had been the subject of constant attention by the defendant and employees such as Mr Downes in the weeks preceding 20 July. The problem had also received attention by Mr Anderson, who had raised it with the defendant in his reports, following his inspections.

9 Employees working in the mine, including during maintenance and repair work were at risk of injury from rib spall and were regularly warned by the defendant and its employees to take care in relation to that risk. Some employees had been injured by rib spall prior to 20 June.

10 The risk of rib spall arose from pressure placed on the walls in the mine, as the result of the method coal mining operations being conducted there.

11 The risk of rib spall was increased if extraction stopped part way through a heading. The longer extraction was halted, the greater the likelihood of rib spall. Widening of the roadway also increased the likelihood of rib spall.

12 The risk of injury from rib spall during maintenance work was increased if the work was performed in a heading, rather than in an intersection at a cut through.

The defendant's case

13 The defendant advanced its submissions on a number of bases. They were in summary that the prosecution had failed to allege, in the charges and particulars, factual ingredients essential to establish the necessary factual support for the charges, namely that a particular decision made on the day in question, tested by reference to mining operations conducted in the previous heading, had led to the risk alleged. These and other defects in the prosecution case rendered it unfit for an answer.

14 The prosecution case was that the risk of rib spall was increased by the defendant's conduct. This demonstrated that the prosecution was fundamentally misconceived, because the risk of rib spall was always present and always life threatening at this mine and known to be so. It was meaningless to talk of an increasing risk of this kind. The avoidance of the risk required the avoidance of known danger zones. Had Mr Downes not been in a danger zone, he was not at risk, or increased risk, of rib spall.

15 In relation to charge IRC 4706, it was submitted that there was a defect in relation to the specification of a place of work, as well as the condition alleged to have not been safe and without risks to health. The place of work could not be the mine itself. It followed that it had to be panel 413, as specified in the particulars provided. There was, however, no suggestion that the work conducted in heading number 7, the place the accident occurred, should have been dealt with differently to that done elsewhere in the panel. Nor did the particulars make clear that the unsafe condition related to scheduled maintenance, which should not have taken place.

16 It was submitted that the evidence had not demonstrated the allegations contained in particular (a). The allegations made in relation to rib instability demonstrated nothing meaningful, other than that rib instability was part of the normal work environment at the mine and not attributable to the defendant, but which had to be taken into account as a part of the normal work environment. The evidence demonstrated that unstable rib conditions had been the subject of ongoing report, as a normal incident of the mining operation. It also demonstrated that the risk of rib spall was always present, no matter what work was being done in the mine and it was always serious.

17 Particular (i) alleged that the MRS was scheduled for maintenance, but the evidence demonstrated that the work performed involved a repair of a severe and serious oil leak. Particular (j) alleged a rib spall had occurred shortly before the work on the MRS had commenced, but the evidence was that there had been no such spall, but rather, at least one, perhaps two goaf falls.

18 Particulars (k), (l) and (m), alleged that Mr Downes was performing maintenance on the MRS when he was injured, but the evidence demonstrated that whatever he was doing, it was not maintenance work and that it did not relate to Mr Dodds' repair work.

19 It was submitted that there was no specification in the charge of how it was alleged that the place of work was unsafe and how it was said that the defendant was responsible for that lack of safety. It was essential that the manner of contravention of the obligation be specified and a mere recitation of asserted facts did not meet the requirement to disclose the manner of contravention alleged. It followed that the charge must be regarded as inherently defective and should be dismissed. The void in the charge could not later be filled with evidence called at the hearing, which was sought to be relied upon as providing some alternative basis for the charge.

20 It was submitted that the only possible basis for a contrary view was that particular (h) might be thought to provide an inference that, without attributing particular significance to it, there was authority to delay scheduled maintenance and continue pillar extraction, but that decision was not taken. It would also have to be inferred that the failure to do so had increased the risk of rib spall.

21 The case could not be supported by some general proposition that the work was dangerous or hazardous and that therefore the only relief available to the defendant was in the statutory defences. To the contrary, both the charge and the evidence had to support some connection between a relevant failure by the defendant and the existence of the risk impinging on Mr Downes on 20 July 1999.

22 There had always been a lack of clarity in the case advanced, as to whether it was a general allegation about performance of maintenance work as part of a system of work which was the subject of the charge, or whether the allegation concerned a particular judgment made on the day in question. The way in which the case was put at the hearing, suggested that it was the particular judgment which was impeached, but that was not clear on the particulars.

23 Nothing was said in the charge or the particulars which suggested that there was some particular condition in the adjacent heading which bore in some particular way upon the decision on 20 July not to continue mining in the 7 heading. The case rested on the rightness or wrongness of allowing production to stop on 20 July on day shift, regardless of the circumstances.

24 There was no case made out on the evidence that supported an allegation that the performance of scheduled maintenance on that day put Mr Downes in danger. The evidence was that such work was being performed all over panel 13 under his supervision. There was no case developed that this involved any risk to employees.

25 The evidence showed that Mr Dodds was not performing scheduled maintenance on the MRS that day. The prosecutor had also not made out any case that schedule maintenance on that day on the MRS created a risk for any employee. The evidence showed that all those who were in a position to make a direct judgment about that issue in accordance with their statutory responsibility, including Mr Downes, were satisfied that production could safely halt. What was left was a question of whether the repair work in question should have been performed on the day shift that day.

26 This left the prosecution with immense difficulty in relation to particulars (i) and (k), because the work was not scheduled maintenance. The evidence showed that the work was a repair. It followed that the allegation could not be made good and the charge should be dismissed.

27 Even if this difficulty could be overlooked, the prosecution had still failed to prove that the MRS did not require repair at that point. This was not dealt with in the particulars, but was necessary to establish the requisite causation, in any event. The only witness called who gave evidence to this effect was Inspector Beatty, but he had no independent knowledge of the factual situation and the evidence had demonstrated that his second hand knowledge was incomplete or inadequate. The upshot of the evidence given by the Inspector was that in cross examination, even he could not say that the machine should not have been repaired, but rather that a particular mode of assessment should have been made. The evidence did not establish that there had been no such consideration. The relevant reports all pointed to the necessity of the repair undertaken and an instruction that the repair be undertaken was given to Mr Dodds.

28 It followed that it had not been established by the prosecution that the repair to the MRS did not require attention then and there, rather than continuing mining further through the panel. It followed that the charge was either defective from the outset, or unsupported in its essential ingredients and should be dismissed. The defendant should not be required to meet a case which was supported only by the speculation of one witness, who had so heavily qualified his own opinion and where there was no evidence that those employed at the mine, who had made the requisite decisions in relation to the performance of the work, had been derelict in their statutory duties in considering the relevant issues.

29 In relation to charge number IRC 4707, it was submitted that similar difficulties arose, given the similarity in the particulars relied upon. Again it was submitted that any fair reading of the charge led to the view that it was referring to panel 413. The charge alleged that Mr Downes should not have been working in an area where the ribs were weak or unstable.

30 It was submitted that the charge as framed was completely defective. The prosecution had not attempted to make out a case that Mr Downes should not have been performing any of his duties. It was not attendance at work, or the fact that the work was being performed in panel 413, which even on the prosecutor's case, put Mr Downes at risk. The case advanced was that while he was there he should have been performing different duties to those on which he was engaged.

31 The manner of the commission of the offence was not specified in the particulars. They made it impossible to identify any alleged system failure and the case advanced in reality contradicted the charge laid.

32 If the view were taken that the charge could support a case that Mr Downes should not have been performing repair or maintenance duties, and the fact that he was performing such work exposed him to risk, it must follow that the charge was not concerned with the nature of the duties, but rather the place of work.

33 The prosecution's case was that Mr Downes should have been performing pillar extraction, rather than maintenance work. Particular (c) alleged that there was a risk of rib spall during extraction, but the evidence showed that risk was present whatever work was being performed. The prosecution could not maintain a case under this charge, that Mr Downes should have been working on different duties in the very same location, because the ribs were weak and unstable. The charge was about the area of work and not merely the duties on which he was working. The evidence showed that his presence in panel 413 was inescapable. If he could not work there, no-one else could. It followed that the evidentiary case put was directly contrary to the charge and so the charge should be dismissed.

34 It was also submitted that the prosecution case focused and depended upon an allegation that the risk in question flowed from rib spall, but that the evidence had not established that Mr Downes had been injured as the result of a rib spall. It followed that it must be concluded that the defendant had no case to answer, because the allegation was fundamental to the charges.

35 The prosecution case was further dependant upon the premise that the risk of rib spall was increased by the mining conditions pertaining on 20 July. The prosecution relied upon opinions expressed by Mr Anderson. His evidence however was unusable, for the purpose for which it was led, failing to accord with the requirements for expert evidence, as discussed in Makita Australia v Sprowles 52 NSWLR 705 at pp729,731 and 745.

36 The evidence also showed that Mr Downes had not been injured because he had been exposed to any increased risk of rib spall, but because he put himself in a dangerous position, contrary to every basic precept applying at this work place, in circumstances where he had responsibility under the applicable statutory scheme for ensuring safety. The prosecution could not establish any causative link between the risk to Mr Downes and any failure by the defendant. Even the investigating officer took the view that Mr Downes had placed himself at risk. The evidence showed that he had disobeyed the absolute basic rules as to performing work under unsupported roof. It followed that the basic requirement to establish causation could not be made good.

The prosecution case

37 For the prosecutor it was submitted that it could not be overlooked that the defendant had, from the outset, conceded that Mr Downes had been injured as the result of rib spall, both in the original accident report form it had prepared and in the admitted facts contained in exhibit one. The prosecution had been conducted on the basis of the concession and no evidence was otherwise necessary to be called to establish this fact.

38 The charges had been framed on the bases of the wording in the relevant section and any inelegancy in drafting was not fatal to their validity. The relevant elements of the charges had been identified and the defendant provided with necessary information as to the case it had to meet. What was required had been provided - 'fair information and reasonable particularity of the nature of the offence charged' De Romanis v Sibraa [1977] 2 NSWLR 264 at pp291-2.

39 The summonses identified the date of the offences alleged, as well as the place at which it occurred - panel 413 at the mine, between the 24th and 25th cut throughs. This permitted identification of the place concerned consistent with the defendant's own documentation and presumably explained why no further particulars were sought by the defendant as to that matter.

40 In relation to charge IRC 4706, the allegation concerned the failure to provide a safe place of work, the place being that identified. The identified unsafety was the instability and weakness of the ribs. The particulars set out background information to support the proposition that the ribs were weak and unstable at that place. The conditions of the ribs in those panels, the fact of continued extraction and scheduling and performance of maintenance on the MRS was referred to and the occurrence of the accident recited, as illustrative of the relevant detriment to safety.

41 As to particular (j), it was conceded that at 7.30 am there had been a goaf fall, and that it was not this fall which had impeded the reversal of the MRS. This was, however, submitted not to be material to the charge. The evidence showed that it had been rib spall from trimming the ribs which had impeded the path of the MRS. However, the gravamen of the particular was that the MRS was not pulled back to a position where it was wholly under supported roof.

42 The manner of the detriment to safety was identified - it being particularised that Mr Downes was performing maintenance on the MRS which could have been deferred and that a large rib spall crushed him against the side of the MRS. This identified the manner in which the risk to safety from rib spall, was connected with the defendant's acts or omissions. They pertained to the performance of maintenance in the conditions as they presented themselves on the day in question.

43 It followed that any reasonable reading of the charge made it clear that the failure alleged was a failure to ensure that when Mr Downes performed scheduled or prearranged maintenance duties on the MRS on 20 July, the place at which he was doing so was safe. That place was known for rib instability, especially part way through pillar extraction.

44 In relation to charge IRC 4707, it was submitted that the offence concerned an alleged failure to provide a safe system of work. That system was the performance of maintenance duties where work was being performed in panel 413 at the mine, between the 24th and 25th cut throughs on 20 July 1999.

45 The substance of the case was that the system which required the performance of maintenance work by Mr Downes at a place of work which was unsafe, was a system which gave rise to a risk of injury from rib spall. The particulars made it clear that the work referred to in the charge was maintenance work.

46 It followed that the summonses were not defective and should not be dismissed. If they were, the appropriate remedy would be to require the prosecutor to provide proper particulars (see Stanton v Abernathy (1990) 19 NSWLR 656 at 671). Here, no particulars had ever been sought and the elapse of time since the prosecution case closed, tended to show that the defendant had never been in any doubt as to the cases it had to meet.

47 In any event, any defect in the requisite degree of particularity, rather than as to vital elements of the charges, should be cured by application of s6 of the Supreme Court (Summary Jurisdiction) Act 1967. (See Boral Gas (NSW) Pty Ltd v Magill [1993] 32 NSWLR 501 at 517.) The time for such complaints had, however, long passed and the submissions were devoid of merit.

48 As to the no case submission, it was submitted in relation to charge IRC 4706 that the evidence showed that the defendant was acutely aware of the risk of injury from rib spall at this workplace. Other employees had already been injured by rib spall. The risk on the day of this accident was increased significantly. Pillar extraction had started, but not been completed when extraction halted for maintenance work. Rib stability was further jeopardised by coal left in the previous fender and the widening of the roadway. Despite this the ribs were not secured by use of props and sprags. It followed that the place of work was unsafe and continued to be so on 20 July when the maintenance work proceeded. Insufficient attention was paid to this risk. The risk was not eliminated and employees' safety not assured.

49 The evidence as to whether or not Mr Downes was under unsupported roof was equivocal. The inference available was that he believed that he was, but whether or not he was, was beside the point. It was a red herring, because the risk alleged was from rib spall, not roof collapse.

50 As to charge IRC 4707, it was submitted that the system of work was the system of pulling the MRS out for maintenance, of cleaning it out before the repair work was undertaken on the day shift, irrespective of the stage the extraction process had reached. The decision to perform maintenance that day was made a week before. The evidence showed that the repair of the oil leak was postponed to the maintenance shift. The system of maintenance involved one man working inside and outside the machine. It also involved delegating much of the responsibility for safety to the deputy, on this occasion Mr Downes. He was also involved in the actual maintenance work, thus giving him multiple responsibilities on a shift where work was conducted under pressure to allow production to start on time.

51 The employer's duty was non-delegable. The system of maintenance work on the MRS included clearing the machine and holes of coal which commonly blocked them, by hand and use of tools and a high pressure hose. The system was unsafe because it exposed employees to unnecessary risk of injury from rib spall, when that work was carried out during pillar extraction.

52 As to the distinction sought to be drawn by the defendant between maintenance and repair work, it was submitted that the evidence showed that repairing oil leaks was a part of maintenance of the MRS and in any event, if Mr Downes' work in clearing out coal from the MRS was not a part of the oil repair as was submitted, it could only have been maintenance work.

53 The performance of such work during pillar extraction was common practice, but on 20 July posed a risk to safety. Unmined coal had been left in the adjacent 6th heading, which inhibited goaf collapse and increased pressure on the ribs. This increased the rate at which ribs spalled and the volume of such spalls, posing a risk to employees working around the machines. These and other circumstances led to maintenance work being conducted increasing the instability of ribs and the likelihood and extent of rib spall.

54 It was submitted that the fact an undoubted risk of rib spall existed in the panel, could not preclude the charges being made out. To the contrary, the authorities demonstrated that the greater the hazard, the greater the need for precaution on the part of the employer. In addition, the submission that the defendant was not responsible for where Mr Downes was working, was untenable. He was at that place to supervise other employees. He was on no frolic of his own and if he strayed into an area of unsupported roof, while he was cleaning the MRS, it was for the benefit of his employer.

55 The particulars of the charges made it clear that what was alleged were offences on one day, at one place, with respect to the manner and the place at which maintenance work was performed on that day.

56 It was not necessary for the prosecutor to demonstrate how this risk could have been averted (see WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales (No 2) (2001) 104 IR 268 at 20 per Hungerford J). Nevertheless, the evidence showed that mining could have continued, that a change in extraction direction would have reduced pressure on the ribs and that there had been no risk analysis conducted in relation to maintenance of the MRS in panel 413. There was no system in place guaranteeing the safety of an employee engaged in the task of clearing coal from the holes in the MRS and no instructions given in how that work was to be performed safely. Nor were safe working procedures devised for the work.

57 Evidence that the defendant had no safety concerns about the work performed that day begged the question. The prosecution case was that there should have been such a concern, given the prevailing conditions. The submission that no-one thought the work was unsafe carried with it an implication that a judgment or decision had been made not to defer the work, but the evidence showed that no such decision had been made. The work had been scheduled and was carried out, irrespective of the prevailing conditions.

58 A mere stipulation to be careful of rib spall could not ensure safety when the work on the MRS machines was performed. Rib spall was commonplace and employees could have become complacent about it. Instructing an employee to be careful about rib spall could not be sufficient to discharge the duty. There was no evidence that Mr Downes had not been careful. The evidence suggested more was required to ensure safety.

59 An obvious method of clearing the holes was to approach them from the outside of the machine, the only way to tell if work was being performed under unsupported roof from outside the machine was to check for roof bolts and in a mine in total darkness, it was easy to stray from the path, when the task at hand did not involve checking the roof. A direction not to go under unsupported roof was not adequate. That the magnitude of any rib spall was unpredictable was also relevant.

60 There was no system for ensuring that the MRS machine was taken to a position of absolute safety before maintenance work was performed. The pillar extraction manual provided that before repairs could be effected the area had to be secured and if unsupported, had to be supported before repairs were effected. If it were not practical to support the area, then the MRS had to be moved before repairs were carried out. No such stipulation applied to maintenance work. What constituted a breakdown was left to the men on the job. The rules were silent as to work on the MRS before extraction of a fender was complete. Whether an area was safe and suitable for the work was left to those on site. Mr Dodds made the relevant decisions. Failing to give instruction in relation to work in places where the ribs were unsafe, exposed all the employees to risk of injury.

61 The prosecution accepted the need to demonstrate the causal connection between the risk to safety and the defendant's acts or omissions. The accident here illustrated the risk. It was also sufficient if the defendant's acts or omissions was a cause of, or made a material contribution to, the detriment to safety. This causal connection had been established on the evidence, given the time taken for the work and the increased strain resulting from the failure to defer the work, until the machine was in a secure position.

62 As to the place of work, the evidence showed that the defendant's decision to stop midway through pillar extraction to perform the maintenance work scheduled, increased the pressure on ribs already prone to spalling and hence the risk of injury, to a significant degree. It was submitted that any increase in the risk of injury, of necessity contributed to that risk.

63 As to the system of work, the question was whether the defendant's failure to devise a system which prevented Mr Downes from working at a place where the ribs were weak and or unstable, contributed to the risk of injury from rib spall.

64 The evidence showed, to the requisite standard, that the system in operation exposed Mr Downes to a significant risk of injury from rib spall. The defendant could not escape from its liability, even if Mr Downes own conduct had contributed to the risk, especially when it was the defendant's system of work which placed him in such a perilous position. (WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257 per Bauer J).

65 There was no evidence that Mr Downes was inattentive to safety matters or would knowingly have placed himself on danger. Even if he had strayed into an area of unsupported roof, this could not have broken the chain of causation. The decision to perform the work was a management decision. While Mr Downes had immediate authority to halt extraction work, the decision to defer maintenance work and continue mining lay with senior management. It followed that an abundance of evidence of a causal connection between the risk and the defendant had been led.

66 There was a case to answer in respect of each charge. Much of what was advanced for the defendant in reality went to the final question, namely whether the prosecution had proved its case beyond reasonable doubt. The prosecution had discharged its obligation to establish that the defendant had a case to answer.

67 Submissions were also advanced as to the opinions expressed by Mr Anderson. It is unnecessary to deal with them here.

Reply for the defendant

68 In reply, it was argued that the prosecution's case demonstrated a continuing confusion between scheduled maintenance and the repair of the MRS on 20 July. There was also a continuing reliance upon the concept of general hazard. A conviction could not be procured on such a basis. The case depended on increased risk.

69 The evidence was such that there could be no satisfaction that Mr Downes had not placed himself under unsupported roof. This was relevant, as was the fact that he was beside the MRS, in an unsafe position.

70 As to charge IRC 4707, it was concerned with the system of work involving particular duties at a particular place. There was, however, no evidence that the MRS had to be cleaned out before the repair work was performed.

71 Further, the submission that safety could not be delegated to Mr Downes contradicted the obligations which fell upon him expressly under the relevant regulations. This raised for consideration the operation of ss33 and 39 of the Act, considered by Haylen J in Rodney Morrison v Tahmoor Coal Pty Ltd [2002] NSWIRComm 327. It could not be suggested that in leaving relevant decisions as to safety to Mr Downes, the defendant was impermissibly delegating to him safety matters. Even if what Mr Dodds and Mr Downes had done involved the defendant in breaches of the Act, the effect of ss33 and 39 was to render the defendant not guilty of the charges, given that the matters in question were directly under his supervision, in accordance with the responsibilities imposed by the regulations.

72 It was explained that a decision to defer the oil leak was, on the evidence not a matter for Mr Downes alone, but the evidence showed, as to causal link, that no-one had any concerns as to safety on the day in question. It followed that the causal link, if established, was continued by Mr Downes alone placing himself at risk by going alongside the MRS machine against a rib in an area that had been widened. The prosecution could not, however, establish that the machine should not have been repaired that day, because the evidence was that if it had broken down, mining would have had to stop at a time and place which was more dangerous, in order for the repair to be effected.

73 The evidence was that the repair work was a one-man job being performed by the fitter Mr Dodds, who needed no instructions in how to perform the work. He did not need Mr Downes' assistance outside the machine and it shouldn't have been given, given the unpredictable nature of rib spall. Mr Dodds had placed the machine where it was safe for him to perform the necessary work. It was Mr Downes who had unnecessarily placed himself into an unsafe situation.

74 In any event, for reasons further developed, it was submitted that both charges were defective and should be dismissed.

Withdrawal of admission

75 At the hearing of the no case submission, the defendant also made an application for leave to withdraw an admission recorded in paragraph (5) of exhibit one, tendered by the prosecution on the first day of the hearing. That admission was that:

'5. Mr Downes' injuries were caused by a rib spall at 413 panel at approximately 10.15am.'

76 As I have noted, the application was made, when, in response to the submissions advanced by the defendant, that there was no evidence that 'Mr Downes' injuries were caused by a rib spall', the prosecutor pointed to the admission made in exhibit one, together with what the defendant had recorded in an internal record of investigation into the accident, which became exhibit 25. There it was recorded in various places, that Mr Downes had been crushed by rib spall.

77 I declined to grant leave to withdraw the admission, indicating that I would later give reasons for that decisions. The hearing of the no case submission then continued.

78 It was common ground that the admission could be withdrawn by leave of the Court. This accorded with the provisions of the Court's Rules and sections 184, 191 and 192 of the Evidence Act 1995. These sections provide:

184. Accused may admit matters and give consents

In or before a criminal proceeding, a defendant may, if advised to do so by his or her lawyer:

(a) admit matters of fact, and

(b) give any consent,

that a party to a civil proceeding may make or give.

191. Agreements as to facts

(1) In this section:

"agreed fact" means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.

(2) In a proceeding:

(a) evidence is not required to prove the existence of an agreed fact, and

(b) evidence may not be adduced to contradict or qualify an agreed fact,

unless the court gives leave.

(3) Subsection (2) does not apply unless the agreed fact:

(a) is stated in an agreement in writing signed by the parties or by lawyers representing the parties and adduced in evidence in the proceeding, or

with the leave of the court, is stated by a party before the court with the agreement of all other parties.

192. Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

79 The parties each argued that justice required that the Court accept the position which they advanced. The defendant accepted that the admission had been made in circumstances where it had received legal advice. It submitted, however, that it was relevant to consider that the admission had been made in circumstances where the defendant had not been in possession of all of the evidence revealed at trial, which made it apparent that the prosecutor had not and indeed, could not, prove that Mr Downes had been injured by rib spall.

80 The evidence particularly relied upon was that given by Mr Downes, that he had no memory of the events on the day in question and the evidence given by Mr Dodds, the fitter working on the MRS when Mr Downes was injured, that he was working inside the machine at the time of the accident and did not see the coal fall and could not tell from what he heard, whether it had fallen from the roof or the ribs. The evidence given by Mr Morgan about a photograph taken after the accident, as to material which had fallen from the roof, was also relied upon. Mr Morgan's evidence was that he could not tell from the photograph, whether the fall had occurred at the time that certain material was removed by use of a continuous miner, some time prior to the accident, or some time after that work had been performed.

81 The prosecutor's position was that the defendant could not properly be permitted to resile from the admitted fact that the injury resulted from rib spall, after the prosecution had closed its case, some three years after the accident, some 6 months after the admitted facts were tendered in these proceedings and only after the defendant had made its no case submission, when the agreed statement was relied upon by the prosecutor, in its submissions in reply. It was submitted that no compelling reason had been advanced for the course urged. It would have significant consequences for the case and the witnesses called. The prosecutor would effectively have to restart the prosecution, it not having sought to adduce evidence on the point from the witnesses called, given the parties' agreement about the matter.

82 Reliance was also placed upon the defendant's own contemporaneous record of its investigations into the accident, which revealed that Mr Downes had been injured by rib spall. This was consistent with the evidence of Mr Morgan, as to what he saw when he came upon the place where Mr Downes had been buried and that given by Mr Grey.

83 The prosecutor relied upon the approach of the Full Federal Court in Eastman v The Queen (1997) 76 FCR 9 at 55, where it was said:

'The function of the discretion vested in the judge in a criminal trial is to ensure fairness in the trial process having regard, on the one hand to the need to protect the accused against undue prejudice and, on the other hand, to the probative significance of the evidence sought to be led by the Crown. In this respect the provisions of ss135, 136, 137 and 192 of the Evidence Act reflect the pre-existing law.'

84 Having heard the parties' submissions I announced, upon resumption of the hearing the following day, that I had concluded that leave to withdraw the admission could not properly be granted. I was not satisfied that the evidence given on the point by Mr Downes, Mr Dodds and Mr Morgan, showed that Mr Downes had not been injured as the result of rib spall as submitted. If it did, it would appear that it was evidence adduced inconsistently with the provisions of s191 of the Evidence Act 1995, which required that leave of the Court be sought and granted before the evidence was adduced.

85 The evidence was that Mr Downes could not recollect what occurred. Mr Dodds while present, did not see what happened and could not tell from what he heard, whether the coal which fell upon Mr Downes came from the roof or the ribs. Mr Morgan's evidence was, however, that he went to the site of the accident immediately after it occurred and found Mr Downes buried by rib spall. This was consistent with Mr Grey's evidence, that when he got to the site Mr Downes was in a stretcher and he saw the MRS machine with broken ribs against it. This evidence was consistent with the contemporaneous documents reporting the accident, created by the defendant, in which Mr Grey and others identified rib spall as the cause of the accident.

86 The admission was undoubtedly important to the defence of the charges. Nevertheless, the entirety of the evidence on the point; the time and circumstances in which the admission was made, when considered together with the consequence of the withdrawal of the admission for the conduct of the trial, in my view, was such that justice could not permit leave to withdraw the admission to be granted. The application should plainly have been made immediately it was believed that the evidence was inconsistent with the agreed facts. The time at which the application was made, after the close of the prosecution case, influenced my conclusion that the application could not be granted.

87 If granted, it would follow that the prosecution would have to be permitted to reopen its case and to recall its witnesses, who had then given their evidence some long time ago. Justice would undoubtedly have required such leave, given that the whole of the prosecution case had been conducted in accordance with the agreement reached in relation to the admitted facts, including the involvement of rib spall in the events in question. This consequence of the grant of the application weighed heavily against the leave being granted. The result would have been further expense and delay and a significant lengthening of the hearing, at a time when the proceedings were, in any event, being heard relatively long after the events in question.

88 That the proceedings were criminal in nature was also an important consideration, but in my view, in the particular circumstances could not lead to the conclusion that the defendant's application could properly be granted. This was not a case where the making of a costs order against the defendant was sufficient to ensure that justice was done, as between the parties and indeed generally.

89 The view which I reached was reinforced by a consideration of the approach taken by Rogers J in Coopers Brewery Ltd v Panfida Foods Limited (1992) 26 NSWLR 738. His Honour was dealing with a civil case, but his comments were of some assistance to my consideration of this application. His Honour declined to give leave to withdraw admissions in a case where there was some explanation advanced as to why the admissions were made. His Honour concluded that the better view was that the admissions were correctly made, but that, in any event, the explanations given for making the admissions did not justify an order for their withdrawal, even if the admissions were incorrectly made. His Honour went on to say at 750:

'I have reached this conclusion after considering two competing policies. One, that an admission should not be permitted easily to be withdrawn so as to make the procedure meaningless and on the other that parties should not be discouraged from making admissions out of fear that once given they can not be withdrawn. I have attempted to set out in some little detail the considerations which impact on the application before me.'

90 Here, the defendant elected not to call any evidence by way of explanation as to why the admissions were made and so the Court was left with the submissions advanced, that the admissions were inconsistent with the evidence as it later unfolded at the hearing and that the prosecutor was unlikely to be able to call evidence which would establish the admitted fact, if the leave to withdraw was granted.

91 It seems to me that to permit withdrawal in the absence of any other explanation of why the admission was made, other than that it was made at a time when the defendant was unaware of what evidence would be given at the hearing, might tend to make the admissions procedure in prosecutions such as this meaningless. That evidence contrary to the admission can only have come forward, contrary to the provisions of s191 is another matter to be given weight. If a defendant wishes to make an application to withdraw an admission, the time of its making will undoubtedly be relevant to a consideration of whether it might properly be granted. A prompt application, while the evidence is being adduced by the prosecution for example, is one thing. The circumstances in which this application came forward, by way of contrast, did not permit the exercise of the discretion in the defendant's favour.

92 It was for these reasons that I declined to grant the leave sought.

Consideration

93 The case advanced for the defendant raised two fundamental questions, namely whether the summonses were each so deficient that they should be dismissed and secondly, whether the prosecution had established a case for the defendant to answer in respect of each charge.

94 As to the first question, I am satisfied that the summonses were not deficient, so as to require their dismissal. Undoubtedly the charges and particulars could have been better drafted. Nevertheless, I am satisfied that the charges each specified the necessary elements of the offence in question, the risks alleged and the acts or omissions of the defendant which were said to have constituted the offence.

95 In matter IRC 4706, the time and place of the offence; that the defendant was an employer; that Mr Downes' health and safety was not ensured and that the employee was at a place of work, were each specified, as was the allegation that the defendant failed to maintain that place of work 'in a condition that is safe and without risks to health'. Particulars were given, which identified the risk in question as risk of injury from rib spall, in circumstances where the instability of the ribs was known to the defendant and where Mr Downes was injured by rib spall, while performing identified work.

96 The causal nexus between the breach and the risk were also specified by reference to the decision to perform the identified work on the day and at the place in question, rather than delaying that work.

97 I am satisfied that the charges are such that they cannot be dismissed as deficient, as the defendant submitted. It was common ground that a danger of rib spall is a danger ever present in a mine such as the one here in question. This, in my view, is not a basis upon which it may be concluded that the offences charged under s15 of the Act could not have been committed, if the evidence establishes that employees, in this case Mr Downes, were exposed to resulting risks. Nor do I accept that an allegation that an employer's actions have led to an increase in a risk, already and ever present in a dangerous workplace, 'is meaningless and inappropriate'.

98 As has oft been observed in the authorities, there are many inherently dangerous industries and occupations where work is required to be performed in dangerous places and under dangerous conditions. Given the absolute nature of the obligations imposed by the Act, it follows that in such cases an employer may have more difficulty in meeting the obligations imposed than would be the case, if the dangers in question were absent. It does not, however, leave room for any view that thereby, an offence may not be committed by an employer, who fails to protect employees from the resulting risks to safety which arise from such hazardous places or conditions of work. The obligations imposed by the Act that the place of work be made safe by the employer remains. The Act requires that the systems of work which such an employer devises ensure that employees are kept safe from such inherent risks when performing work. That an offence may also be committed if ever present risks are increased or exacerbated, as the result of an employer's acts or omissions, can only follow as a matter of inescapable logic.

99 In this case, I take the view that there was no lack of particularity in the charge laid, which would warrant an order for further particulars being made at this stage. No such order was, indeed, sought. The complaints as to the defects in the charges were first put after the close of the prosecution case. Had any complaint earlier been made as to alleged defects in the charges, or any lack of particularity, it might have been the case that some further particulars would have been ordered, although I have considerable doubt as to the likelihood of such an order having been made. Nevertheless, it cannot be overlooked that the complaint only arose after all of the prosecution evidence had been put on. The complaints finally advanced were, in my view, not such that the charge could have been dismissed, or further particulars now ordered to be provided.

100 I have come to a similar conclusion in relation to charge IRC 4707. The time and place of the offence; that the defendant was an employer and that Mr Downes' health and safety was not ensured, were each alleged. The particular failure in the system was also identified, namely a system which prevented Mr Downes 'from working in an area of the mine where the ribs were weak and/or unstable'. That is the act or omission of the defendant which is asserted. Nor do I accept that in a case concerning work of the kind under consideration here, that the 'system of work' cannot comprehend the place at which particular work is to be performed, as the defendant argued.

101 Particulars of the offence were also given. They again referred to rib instability at the place where the identified work was performed and the risk of rib spalls which there existed. Reference was again made to the rib spall which injured Mr Downes on that day. The causal connection was also specified, namely a failure to delay the work until a stable position was reached.

102 I am also not able to accept the submission that this charge should be dismissed because it was asserted that mining work should have been carried out, in the place in question, rather than maintenance work on the MRS machine. The evidence established that this was a dangerous workplace, with rib spall an ever-present risk. I am unable to come to the view that the evidence established that mining work, if carried out, would have been unsafe. It might be that such a case could be made out, if the relevant evidence were called, but it was certainly not a part of the prosecutor's case, nor do I understand that the defendant sought to show this to have been the case.

103 I turn to the no case argument. The parties were agreed as to the applicable law. It is that discussed by Marks J in WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Pty Ltd [2000] NSWIRComm 221 and Kavanagh J in WorkCover Authority of New South Wales (Insp Mauger) v SWR Constructors Pty Ltd [2000] NSWIRComm 115.

104 I am satisfied in each case that the defendant has a case to answer. At this point, in short, the prosecution case must be taken at its highest; evidence favouring the defendant must be disregarded, the weight of the evidence and the credibility of witnesses is not to be considered. The evidence and inferences to be drawn therefrom must be capable of establishing, to a prima facie level, each ingredient of the offences charged, beyond reasonable doubt.

105 The areas of real and relevant contention between the parties at this point concerned matters such as whether the work in question involved maintenance work, as charged, or rather repair of an oil leak; whether or not that work could safely have been deferred; whether there was a risk of injury from rib spall flowing from the place at which the work was being performed on the MRS machine and whether Mr Downes' safety was assured. Much of the contention concerned the question of whether the necessary causation could be established.

106 The defendant also relied upon the provisions of ss33 and 39 of the Act. I take the view that this is not the proper time to consider whether those provision expressly permitted or required the acts or omissions in question.

107 The same conclusion must flow in relation to submissions about the difficulties flowing from Mr Anderson's report. At this stage the prosecution case must be taken at its highest. Consideration of any other defences which the defendant might have under s53 of the Act, also does not yet arise.

108 I am satisfied, on the evidence led in the prosecution case and the inferences available to be drawn therefrom, that they are capable of establishing, to a prima facie level, each ingredient of the two offences charged and that the defendant has a case to answer. The evidence of the inherent dangers flowing from rib spall in this mine; the particular dangers existing in that respect on 20 July 1999, at the place of work in question; the conditions resulting from the mining operations there conducted and the place at which the MRS machine was located, so that work could be performed on the machine under the system of work which the defendant then had in place, in my view, preclude a conclusion that the defendant does not have a case to answer.

109 In coming to that conclusion I have noted the prosecution's concessions that the particulars were inaccurate, in so far as they alleged that a rib fall had occurred shortly before the work on the MRS machine had commenced on 20 July and that the evidence as to whether Mr Downes was under unsupported roof when the accident occurred, was 'at best equivocal'.

110 I have also noted the submissions advanced as to the statutory obligations imposed upon Mr Downes as to safety and his own responsibility for having placed himself in the danger which led to his injury. These submissions will, of necessity give rise to a consideration of the provisions of ss33 and 39 of the Act, as well as the interaction between the approach of Fisher P in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at pp210-211, as approved in State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at pp120-1 and that discussed by Bauer J in WorkCover Authority of New South Wales v Maine Lighting Pty Limited (1995) 100 IR 248 at p257. Namely, was this a case where, on the evidence, it should be concluded that Mr Downes' conduct, was unforeseeable and unanticipated, he having been a properly trained and experienced supervisor, with the requisite responsibilities as to safety? Conversely, was this a case where the defendant failed to guard against Mr Downes' human error when, whether through inadvertence, inattention, haste or even foolish disregard of his personal safety, he failed to guard himself against the foreseeable risk of rib spall?

111 It may be ultimately that the view taken is that the evidence does not establish the necessary causal connection which the prosecution must establish between the risks to safety alleged and the defendant's acts and omissions. I am satisfied, however, that the evidence led in the prosecution case is sufficient to establish this ingredient, and the other essential ingredients of the charges laid, to a prima facie level.

112 It follows that I have concluded that neither summonses may properly be dismissed at this point and that the defendant has a case to answer in respect of each charge.

Orders

113 For the reasons given, I decline to make the orders sought by the defendant.

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LAST UPDATED: 26/02/2003