Morrison v United Collieries Pty Ltd [2003] NSWIRComm 439 (16 December 2003)

Last Updated: 16 December 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Morrison v United Collieries Pty Ltd [2003] NSWIRComm 439

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, 04/03/2003, 05/03/2002, 12/03/2003, 25/08/2003, 26/08/2003, 27/10/2003, 28/10/2003, 29/10/2003, 30/10/2003, 31/10/2003, 12/11/2003

DECISION DATE: 16/12/2003

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

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

WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Limited (2001) 105 IR 81

WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121

LEGISLATION CITED: Coal Mines Regulation Act 1982

Occupational Health and Safety Act 1983

Underground Mines (Regulations) 1984

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Schmidt J

DATE: 16 December 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

JUDGMENT

1 These prosecutions were brought under s15 of the Occupational Health and Safety Act 1983 ('the Act'). An interlocutory judgment dealing with a no case to answer submission advanced by the defendant, was given on 26 February 2003. (Rodney Morrison v United Collieries Pty Ltd [2003] NSWIRComm 36.)

2 The charges brought 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 Downe, 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 In bye 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 in bye 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 in bye 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 interlocutory judgment dealt with the evidence called by the prosecutor at [6] to [12]. At [94] to [102], I concluded that the charges each specified the necessary elements of the risks alleged and the acts or omissions of the defendant which were said to have constituted the offence. It followed that the offences could not be dismissed, as deficient. At [103] to [112], I also concluded that the defendant had a case to answer, in respect of each charge.

The evidence

4 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.

5 A number of matters were agreed. They were:

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.

6 The defendant called expert evidence from Dr Galvin and the prosecutor also then called additional expert evidence from Mr Anderson. While there was much common ground between the opinions of the two experts, there were significantly divergent opinions on a number of crucial matters. Those differences gave rise to the question of whether this was a case of the kind discussed by Fisher P in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 210, where it was said that the case "is not proved beyond reasonable doubt, because there remains an acceptable hypothesis reasonably consistent with the innocence of the defendant, that is, a reasonable doubt as to whether the matter alleged has been proved beyond reasonable doubt and was causally connected to the breach."

The circumstances

7 On 20 July a number of employees were working on day shift at this mine. Coal production was not underway. Extraction had been halted in seven heading between 24th and 25th cut throughs. Headings and cut throughs were the drives into the coal deposit which had been created at the mine by use of continuous miners. They formed an almost square pattern of panels and roadways, named numerically. The intersection of these roadways left pillars of coal, which were mined by the continuous miners in a particular pattern of passes called lifts or fenders, in a process known as pillar extraction.

8 Headings and cut throughs were driven to a maximum width of 5.5 metres, and a height of 3 metres. The sides of the pillars or roadways were known as the ribs. Once the pillars of coal were extracted, a void was created called the goaf. The roof of the roadways was supported in a variety of ways, including by the pillars themselves; by the use of roof bolts in the roadways; by Mobile Roof Support ('MRS') machines at the edges of the goaf and timber props and sprags. One of the purposes of this method of mining was to ensure that the roof of the mine did not collapse until after the pillars of coal had been extracted, but that once that had occurred, the roof in the goaf collapsed regularly. Any delay in such collapses made subsequent mining more dangerous, because it affected the stability of the roof in the remaining roadways, as well as the state of the ribs.

9 On the evidence the greatest danger for those working in the mine arose from the possibility of roof collapse. Other risks arose from the possibility of rib spall, or rib fall, that is, coal falling either in lumps or sheets, from the edges of the pillars. The most dangerous places in the mine were the goaf, where no worker is ever permitted to go; the ribs, which may not be approached and intersections. All work in a mine must be undertaken by the workers under supported roof.

10 As the earlier judgment noted, the evidence showed that the risk of rib spall was ever present at this mine. The risk was given constant attention by managerial employees, including Mr Downes, the injured worker, in accordance with the safety obligations imposed by the Coal Mines Regulation Act 1982 and the regulations made hereunder. (I will collectively refer to this Act and the regulations as 'the CMR Act'.) The problem had also received attention by Mr Anderson, prior to 20 July.

11 The evidence also showed that the risk of rib spall increased, if a variety of factors were present. One of them was if extraction stopped part way through a heading. That was what had occurred on the day Mr Downes was injured. Extraction had stopped and a major oil leak on a MRS machine was being repaired.

12 Mr Anderson and Dr Galvin disagreed with each other, on a variety of matters. This included whether or not it was safe to have undertaken the repair of the oil leak, part way during extraction of seven heading. Mr Anderson's view was that the work being undertaken was "routine maintenance"; that it should not have been undertaken at that time and place, because "there was increased instability of the ribs and an increase in the likelihood and extent of rib spall, due to increased strata load caused by the coal left in six heading and the uncaved state of the goaf'". He also took the view that "a 7 hour delay for maintenance would be possible with safety."

13 Dr Galvin's view was that it was "not possible to state categorically whether maintenance should have been delayed until the completion of the fender." By the shift in question, the MRS' oil consumption represented "a major leak in the hydraulic circuit and had the potential to cause MRS 1 to run out of oil." The possibility of the MRS running out of oil gave rise to the risk that the MRS would become unserviceable, thus requiring manual filling by two employees carrying 20 litre drums of oil. This would have posed risks to safety, even assuming that the MRS remained under supported roof, enabling the work to be performed. Alternatively, the MRS would have had to be towed to safety. This prospect too gave rise to other safety risks, including a lack of continuity in extraction, at a time when this was critical, namely the final stages of extraction of the fender. The MRS becoming unserviceable close to, or in the intersection, also heightened safety risks.

14 Dr Galvin's opinion was that it was thus preferable to have undertaken the repair work at the point where it was undertaken. There was no rule or procedure precluding it being undertaken there. In his view, the decision taken presented a lower risk than the course Mr Anderson proposed.

15 Mr Anderson's further report explained why he disagreed with Dr Galvin, emphasising "The guiding principle must always be to conduct the pillar extraction continuously. That was and is the industry practice." His view hinged upon the fact that the MRS was still functioning, referring to the defendant's pillar extraction rules, which concentrated on this scenario. In his view, it was not a "proper approach" to trade "the possibility that MRS1 may have broken down completely at a more dangerous part of the pillar extraction." On his approach there was no indication that a complete breakdown was imminent and no reason why the MRS could not have been topped up with oil until extraction was complete, which would take 2 to 3 hours.

16 Dr Galvin also explained the reason for his disagreement with Mr Anderson. He found Mr Anderson's approach to be 'ludicrous', given his own assessment that extraction would take up to 2 shifts to complete; the nature of the oil leak and the risks to safety posed by the complete breakdown of the machine. Extraction of the fender was not in fact, ever completed. In Dr Galvin's view, the risk to safety posed by the course Mr Anderson advocated was extremely high. He made reference to historical information in relation to fatalities associated with pillar extraction and the incidence of continuous miners being buried, which confirmed that intersections are particularly hazardous areas, especially when retreating into them.

17 Dr Galvin's evidence as to the rib fall which injured Mr Downes, was that it should not have mattered that it fell as it did, because "the site of the fall was clearly defined not to be a place of work. Such a rib fall was commonplace, unavoidable and to be expected." He also expressed the view that "The incident site was clearly defined not to be a place of work because it was in the goaf, out under unsupported roof." In Dr Galvin's opinion, Mr Downes there had safe access to the machine under supported roof. Had he wished to work on its side however, he should have had the machine relocated. The area in which Mr Downes, a deputy with 28 years experience, was working was designated as a place where persons were not to work, by the CMR Act and the Pillar Extraction Manual. He was the person in charge of this workplace and responsible for enforcing this rule. Dr Galvin said:

"I cannot understand and am perplexed as to how a Deputy with extensive experience, who had consistently acknowledge (sic) in writing the hazards associates with ribs, could venture out under unsupported roof and expose himself to the ribs. His actions are totally inconsistent with his primary function as a Deputy of ensuring that the workplace was maintained in a safe condition, that persons under his charge did not engage in unsafe practices and that the requirements of the CMRA and the Management Plan were complied with.

If Mr Downes had complied with the CMRA and the Management Plan it would not have mattered if the rib fall had occurred. He would have been located in a designated work place that was secure and safe. The rib fall would most likely have gone unnoticed as an expected, normal event."

18 Mr Anderson's assessment was that the repair could safely have been delayed. How long extraction of the fender would have taken did not matter. That consideration was irrelevant, given the requirements of the pillar extraction manual. The basis of Mr Anderson's calculation as to how long it would take to reach a position of safety was not entirely clear on the evidence. It did not, however, have regard to actual experience at this part of the mine. Dr Galvin's assessment was that the work would have required several shifts to undertake, consistent with the evidence as to the time taken to extract coal at this location, before and after the accident.

19 Mr Beatty was the District Inspector of Coal Mines at Singleton in 1999 and the inspector of this mine. Mr Beatty was called to the mine after the accident. He found that there had been coal left in the 6th heading, which he explained was relevant to the conditions encountered in the 7th heading, where the MRS was being repaired, because, in his view, this would have had the effect of increasing the loading on the coal rib sides, making "their collapse proceed quicker because it is stressing all the time and over time, as time proceeds, more coal, in a unit of time more coal will be spalling from those ribs". I interpolate at this point to observe that Mr Anderson agreed with this opinion, but Dr Galvin did not.

20 Mr Beatty expected the result to be more rib spall, so that the roof span would increase further, which was also a negative. His evidence was that it was the mine deputy who had immediate responsibility for halting, or continuing mining in those sorts of conditions, with the ultimate responsibility lying with the undermanager and mine manager.

21 Mr Beatty had taken various of the photographs in evidence. It was estimated that about two tonnes of coal had collapsed onto Mr Downes. While the rib which fell had been mined just before the accident, which would have led to a hope that it would "be at least stable for a fair period of time", in Mr Beatty's opinion, the position was that the "goaf pressure was in fact severe enough to release that block of coal." An accident plan was drawn up by surveyors and Mr Beatty instructed the defendant to resume work as quickly as possible, after his inspection. There was a concern that delay might induce roof failure.

22 As a result of his investigations, Mr Beatty formed the opinion "that the machine should not have been put down for maintenance at that time. It should have been put down for maintenance some time earlier or later when the machine was itself in a secure position." This meant where safe access could be gained right around the machine and where there was protection from the ribs. Some fenders had then been taken in the 7th heading and Mr Beatty's opinion was that that was the "wrong time to undertake any substantial maintenance of any machine but particularly the MRS when that can be deferred until the changeover from headings was occurring, when machinery was in a very secure position." The machine should have been repaired in 24 cut through.

23 Mr Beatty understood that the oil leak was not severe enough to prevent its function, provided oil was kept up to the machine. He formed two opinions as the result of his investigations. They were:

"It was that the maintenance of the MRS carried out during fendering operations would involve work that takes time and during this time the ribs falling and time strain effect creates a hazardous situation the longer that the process takes and it was my opinion that they should defer anything that was deferrable to such time as when the machine is in a safe and secure position for that maintenance.

I formed the opinion that the work should be done on these machines to prevent that filling of stone and coal into the body of the machine. That it would for various reasons, A B and C, as I recall now it would enable the maintenance to be carried out on a routine basis very quickly. It would ensure as far as possible that these machines which are vital to the fendering process wouldn't break down during that fendering process and thirdly it would remove the hazard of people working in these areas where ribs falling was occurring and thus make it safer for workmen generally."

24 In cross examination, Mr Beatty agreed that he had also formed the opinion that Mr Downes had breached cl8(2) of the Underground Mines (Regulations) 1984, because he had placed himself in an unsafe position, where the roof and sides were unsupported, a risk that Mr Downes knew of. He was surprised that Mr Downes had so located himself in the goaf area, which was plainly unsafe. Mr Beatty also agreed that he had not taken account of regulation 15, which requires reports to be made if it appears that a MRS is defective.

25 Mr Beatty explained in re-examination that he had not taken regulation 15 into account, because he did not regard the MRS to have been defective. As far as he was aware, it could perform its function if it was topped up with oil. He also explained that the shift reports suggested to him that the oil leak should be fixed as soon as possible, consistent with safe working and that it should "be parked and repaired keeping in mind it would be a lengthy job". Mechanical engineers and the undermanager should have been involved in those decisions. Consideration should have been given to whether the leak could result in the machine becoming dysfunctional and how to best do the repair safely. The determination should have been made as soon as a report on the nature of the defect was received.

26 It was not Mr Beatty's view that production in panel 413 should never stop mid-extraction, but that it should not stop, if maintenance could be deferred. It was his view that while the oil leak was a major one, the repair could have been delayed. The machine had not failed to that point and he assumed that it would not fail, if supplied with oil. He accepted that this would involve manhandling 20 litre drums of oil, which was arduous, but in his view, not potentially dangerous, with access available under supported roof. Mr Beatty agreed, however, that access to the MRS in its operating position was limited and so close to the edge of the roof bolted area, as to be questionable. He suggested, however, that the machine could be trammed to a position where access was more readily available, whenever oil had to be supplied, acknowledging that when the next fender was cut, the roadway became considerably widened and the roof outside the bolted area, considerably less stable.

27 Mr Beatty had not considered how frequently the machine had to be filled with oil, to that point. He agreed that if the machine had failed, mining would have had to halt, because it would have been unsafe to continue. He also agreed that it would have been more dangerous to affect the repair, if the machine had broken down closer to the intersection and that then there would have been no opportunity to continue mining, if the conditions had deteriorated.

28 After the accident, Mr Beatty had recommended to the defendant that there be work done on the MRS machines to prevent them filling up with coal. He had discussed how this might be done, but had not followed up what had occurred. In his opinion, it was a technical problem, which probably had a solution. I note at this point that the evidence showed that this was pursued, but no alterations to the machines resulted.

29 Mr Dodds' evidence was that on the day of the accident, he had been assigned the work of repairing the oil leak. The MRS machine had been stuck in the goaf by a fall. It was pulled out a short way and then moved under its own power, to an area of supported roof, as indicated by roof bolts. It was located about 5 metres from its original position, only partially under that roof, in case the problem could be fixed quickly and the machine returned. There was a risk that if there was a goaf fall, the machine could not be put back and the other two machines might then be buried. Just before the machine was pulled out, the ribs were trimmed, using the continuous miner.

30 Mr Dodds climbed into the machine, to clean out coal, looking for the oil leak. This was done by hand and with the use of a shovel and hose. After about an hour, Mr Downes approached, and tried to "clear coal from around the inspection hole" on the side of the machine. Mr Dodds had not sought his help and Mr Downes did not tell Mr Dodds what he was doing. In cross examination, Mr Dodds' evidence was that Mr Downes started cleaning from the plough end of the machine, under the warning sign which warned that the roof was unsupported outside the MRS. In re-examination, he agreed that after the accident, he had told the investigating inspector that he had seen Mr Downes on the left hand side of the machine. He was not certain whether Mr Downes was there under supported roof. He was standing on the ground to the left of the machine, cleaning out the inspection hole. In hindsight, Mr Dodds thought that this was an unsafe position to stand, but was too involved in his job to think much about it at the time.

31 About 15 minutes later, Mr Dodds heard some coal fall and strike some armadillo plate, on the side of the machine. He had his back to Mr Downes and could not see him. He asked Mr Downes if he was OK and Mr Downes said he was. In cross examination, Mr Dodds said that he did not really know what Mr Downes was doing then. He could not turn to see him. Shortly afterwards Mr Dodds heard another fall. He called out again to Mr Downes, but got no response.

32 Mr Dodds climbed out from the machine, could not see Mr Downes and called for assistance, which was given by Mr Morgan. They started lifting fallen coal, were joined by others and uncovered Mr Downes, who was lying with his head between his knees, unconscious and not breathing, at the left side of the machine, near the inspection hole.

33 Mr Dodds explained that normally you could not access the left hand side of the machine, near the rib, unless it was right out in the heading. The MRS regularly clogged with coal, which had to be removed. There were no written procedures for doing so. It was an inconvenient and frustrating job, to clean out coal for looking something which might only take a few minutes to fix. The coal build up damaged fittings on the machine, but did not give rise to hazards for those working on the machine. Mr Dodds did not see a need for any training in how to remove the coal from the machine, given what was required.

34 Mr Dodds' evidence was that maintenance was usually carried out when the machines were not being used to support the roof, a road away from the extraction area, where the ribs were better. Timber supports were then used. If a lift was incomplete, it would be finished before maintenance started. This could occur before a pillar was entirely extracted, depending on conditions. If this occurred, the ribs fell out a bit more. If rib conditions made it undesirable to stop, maintenance was postponed.

35 The machines were moved out for routine maintenance, which was scheduled weekly, because it was necessary then to access right around the machine. Some routine jobs did not require such access and they could be done from inside the machine, or under supported roof, without the machine being used.

36 The machine carried a warning sign, referring to unsupported roof outside of roof bolted zone. In cross examination, Mr Dodds explained that the roof bolts were removed by remote control and were not hard to see.

37 In cross examination, Mr Dodds agreed that the job he was doing on the day of the accident was not routine maintenance, but a repair. Mr Dodds explained the conditions of the mine where such work was performed - pitch black with an uneven floor, only lit by what a worker pointed his lamp at. He also described the work involved in filling the machine with oil. On the day, he could hear the oil escaping from the machine. This suggested to him that it was a reasonably bad leak, which might possibly affect the machine traction, so that it could not move.

38 Mr Dodds also described how he had moved the machine to a position that he was satisfied was safe for the work required, giving access under supported roof. He was hoping to repair the leak without replacing the hose, if the leak was at the site of a loose fitting, or joint. He hoped it would be a quick job. If he had needed access to the outside of the machine, he would have had it moved to the middle of the road.

39 Mr Dodds also described the rib conditions at the time as similar to those elsewhere in the panel, rib spall was an ordinary part of the working conditions there. He explained that he always made sure that he had safe access to a machine and was not exposed to the ribs when working. He had never seen anyone go between an MRS and the rib. He had always been able to do the cleaning necessary to effect a repair, from inside the machine.

40 In re-examination, he further explained where MRS machines and continuous miners were usually positioned for routine maintenance.

41 Mr Downes recalled nothing of the day of the accident. He had suffered a head injury and had had problems with his memory since. Mr Downes described the general procedures then in place for work allocation on a daily basis, while still on the surface. He described the rib conditions at the time as only fair. Mr Downes had dealt with them in his written reports. He reported to the undermanager and rib conditions were a matter of ongoing discussion between them at the time. More care was taken underground as a result.

42 Decisions as to the day on which maintenance was to be undertaken were made a week in advance, but were subject to change, with decisions made on the day by undermanagers and engineers. A decision to call off maintenance had to be made by them. Mr Downes would raise with them any concerns he had about roof conditions, or deviations from plan, if coal would then have to be left. The undermanager would be contacted and he would come to inspect and a decision would be made, if the area was regarded as too unsafe to work. Deviations from plan, because for example a geological fault was encountered, also needed attention by an undermanager.

43 Mr Downes explained that goaf falls and rib spalls were normal occurrences at the mine, not requiring an undermanager's attention. In 413 panel, rib spall was usually worst in four, five and six headings.

44 Mr Downes described his involvement in cleaning out MRS machines before the accident. There was no direction or instruction in how such work was to be done. Tools used included hoses and small pieces of steel, the majority was removed by hand. The decision as to where particular work was to be done was made by Mr Downes, in consultation with the other workers. It was not always done in intersections, for reasons connected with rib spall and coal loss. In cross examination, he explained that MRS 1 and 3 would never be cleaned out in the middle of a pillar, but in a cut through, where there was safe access.

45 Mr Downes also explained the procedures for undertaking maintenance, having regard to the point extraction had reached, which involved various rules and consultation with the undermanagers on matters of safety. He described the most dangerous point to be when extracting back towards an intersection, where there was a risk of roof fall.

46 Mr Downes also described how supported roof could be identified by sight.

47 In cross examination, he explained that he was the man in charge underground, apart from when the undermanager was present. He gave directions as to the work to be done and was responsible for seeing that safety rules were observed and work was done with proper attention to safe mining practices. He had received his deputy's ticket in 1978 and had mainly worked in board and pillar extraction. He was familiar with the pressure placed on ribs and the constant presence of rib spall.

48 Mr Downes agreed that failure to observe rules such as those connected with working under unsupported roof could be life threatening. He also agreed that the continuation of work having regard to safety concerns was the subject of constant attention and discussion at the mine. He described how decisions in relation to the place where routine maintenance was undertaken were made and how conditions were drawn to everyone's attention on the deputy's board. He also described how the two and four hourly inspections required by the CMR Act were conducted. He described how he would walk near the middle of a roadway, if approaching the goaf line, because of the risk of rib spall. His view was that the safest time was right after a rib had spalled. It was then unlikely to spall again.

49 Mr Downes was taken to the reports he and other deputies had made about rib conditions in the shifts leading up to that on which he was injured. He also described his own practices in relation to safety matters, inspections and direction of other workers, including in relation to conditions such as rib spall. He agreed that if a safety issue came to his attention, he was obliged by the CMR Act, to act immediately. He also described the system of appointments provided for by that legislation, as well as the system of communicating information between shifts and different levels of management. He also gave evidence as to his training in risk assessment at 413 panel.

50 Mr Downes also explained that he would try not to stop production close to an intersection, unless a machine broke down and that he would try to repair a machine, if he was concerned that it might break down further in the heading, closer to a intersection.

51 After the accident, Mr Downes told the inspector that he did not know why he was where he had been found. In cross examination his evidence was that on the plans of the accident site, he could not see a problem with standing there, assuming the MRS had been set to the roof. He agreed that this would have broken the roof bolts there, but in his view, MRS 2 and 3 would then have been moved forward, MRS 1 would not have been moved back. He conceded, however, that photographs of the site, taken about 6 hours after the accident, showed that there was no roof bolt in the vicinity where he was found and that given where the MRS was positioned, rib spall could there reach the side of the machine. He also accepted that he would have had an obligation to immediately remove anyone he saw working there.

52 In re-examination, Mr Downes said he would not knowingly have placed himself in danger. He was aware of his statutory obligations. He also described his view that the pressure of work was greater during maintenance shifts, than during production, given the work to be performed. He would not however, compromise on safety.

53 Mr Niven described the roof fall at the commencement of the day shift on 20 July and the repairs to the stopping, or brattice sheets, then undertaken. The continuous miner had been used to cut the ribs, to allow the MRS machine to be moved. There was then a second small goaf fall and the brattice had to be put up again. He then moved the MRS, before leaving the panel to attend a safety meeting.

54 Mr Niven described the process of cleaning coal out of an MRS machine. He also described the difficulty of the work and his dissatisfaction with the design of the machine, which always filled up with coal. In cross examination, he described the machines as brilliant, apart from being hard to clean, with various safety advantages for mining, which he described.

55 He also described how the machine would be moved to a safe place, if work had to be done on the side of the machine. The best place was in an intersection after the pillar had been removed and the machine was in a cut through, with no weight on the sides.

56 Mr Niven also described the conditions of the ribs, which was worse mid panel in six and seven heading. He described the places where maintenance was undertaken and the role of the deputy and miner driver, in deciding whether to postpone maintenance. He was a member of the occupational health and safety committee and agreed that he had not raised with the committee that the conditions of the ribs were unsatisfactory. He said there was nothing out of the ordinary there.

57 In cross examination, Mr Niven described how on the day, he had brought the MRS out far enough to allow it too be looked at. He had not set it to the roof, because that would break the roof bolts. He agreed that he had told the inspector that he had never seen people go around the side of an MRS to clean out the holes and described the danger in going to the side of the machine, near the goaf and in the vicinity of the ribs. He suggested that there was less chance of rib spall with freshly cut ribs, but could not be certain that they would not fall. In re-examination, he explained that it might be a while before they started to deteriorate. He also said that the ribs were not secured by props or sprags.

58 Mr Niven also described the area where he would not wish to be undertaking break down maintenance of a machine, as toward the end of a pillar near the intersection. He also described the difficulty in bringing a machine out of line for repairs. In re-examination, he explained that if access was needed to the side holes of the MRS, it would be driven out and swung around.

59 Mr Dixon's evidence was that there was not a single safe working practice document for the maintenance of MRS machines. It was common practice for maintenance to be carried out after the start of extraction of a pillar and before its completion. He was not aware of any risk analysis for maintenance of an MRS machine.

60 Mr Phillip's evidence was that he had cut an area of the rib on 20 July and was later working on erecting a stopping, when he learnt that Mr Downes had been buried and went to assist. After the situation was assessed, the coal was removed by hand. Mr Downes was uncovered in a crouched position against the side of the MRS. Some of the pieces of coal had required two or three people to lift them. Mr Philips also described the rest of the rescue operation, as well as the training he had received in rib safety and the steps taken to deal with problems identified with the conditions of the ribs. He described once having been pinned against a continuous miner, by a falling rib, about 12 months previously, during development work. He also referred to a trial of rib bolts, which had been discontinued.

61 Mr Phillips also described the work involved in cleaning coal from an MRS machine. His evidence was that he would only ever go to the side of the centre MRS to clean out the side holes. There was no other reason to go to the side of the machine. He explained that on the day the machine was more or less broken down and was moved, so that it could be fixed. In cross examination he also described the improvement in safety affected by use of the MRS machines, compared to timber props.

62 Mr Morgan described his work on the daily maintenance of the continuous miners on the day of the accident. He also worked on the stopping after the goaf fall and described how MRS 1 had to be moved, after the goaf had fallen on the machines. He drove the miner which was used to tow the machine out. He was servicing the miner when his assistance was called for. He was involved in the rescue operation and also described the rib fall which covered Mr Downes. He described having been scratched by falling ribs in the past. He also described rib conditions in the panel and in cross examination described how a continuous miner operated.

63 Mr Morgan described how care was taken not to disturb roof bolts and that the place where the rib was trimmed, to the left of MRS 1, had no form of roof support. He agreed that if this work had been done during development, there would have been an absolute obligation to place a roof bolt in that area. He also described the safest position from the point of view of rib spall, as being under bolted roof. He confirmed that when MRS machines are set to the roof, that they break the roof bolts.

64 Mr Guthrie gave evidence that it was he who had sought paramedic assistance on the day of the accident. He, too, described how Mr Downes was found and his experience of cleaning out MRS machines. He also described the maintenance work performed on those machines. He described how he obtained access to the side of the machine, trying to stay in the middle of the headings as much as possible, inspecting the ribs and calling for extra support if needed, with the deputy then taking steps to make it safe, for example by barring down a suspect rib. In cross examination, he confirmed that the practice was not to go under unsupported roof and that there was always an option of adding more roof support and that even when under supported roof, the state of the ribs would be checked.

65 Mr Sutherland gave evidence about the state of the mine prior to the accident and his contact with Mr Anderson. Mr Anderson's correspondence was circulated to other staff, posted on notice boards and information also conveyed to the crew in the panel. Mr Sutherland confirmed that changes made at the mine after the accident had a positive effect on rib stability, but some areas were still bad.

66 In cross examination, Mr Sutherland confirmed his view that Mr Downes had located himself in the goaf area, where the roof was unsupported and people were not to walk. It was an unsafe area, given the extraction undertaken. In re-examination, he explained that the road had there been widened to a greater span than normal, with the result that more pressure was placed on the ribs, making them more unstable.

67 Mr Sutherland also described the training employees had undertaken in relation to hazard awareness and identification, so that controls could be implemented. Mr Sutherland also described the CMR Act reporting system operating at the mine, including the coal rib management plan which was regularly audited and reviewed on a weekly basis.

68 Mr Sutherland described advice from Mr Anderson in June 1999, followed by the mine, in order to improve rib conditions. This involved working away from known faulted zones, in order to better control caving conditions. After the accident the defendant received advice from a geotechnical engineer, that the mining should be approached from the opposite direction and that the panel should be compartmentalised. Both were implemented.

69 Mr Sutherland's evidence was that Mr Anderson had not suggested to the defendant that maintenance should not be performed mid extraction, prior to the accident. The mine had rules for halting partially lifted fenders, which he described. He also described the safety mechanisms in force at the mine, including meetings and reporting arrangements, as well as statutory and other notice boards and the documents and information made available to employees, as well as the mine manager's rules. He also described the training and accreditation of staff and risk assessments undertaken at the mine, as well as external statutory safety inspections, including those undertaken by Mr Anderson, about once a month.

70 Mr Sutherland described the safety improvements introduced by the development of the MRS machine and its introduction at the mine. He also described the investigations after the accident, to alter the design of the machines. There was no change, as a result.

71 Mr Sutherland also dealt with the rules which required that mining cease, in the case of a breakdown of an MRS. He also described the equipment maintenance programme. Breakdown was not defined in the rules, but there was no discretion in that event arising. Mining had to cease, no matter when the breakdown occurred. Mr Sutherland did not consider that the MRS had broken down that day, but that it had an oil leak which required repair.

72 Mr Grey gave evidence that he was at a safety committee meeting when advised of the accident on 20 July. He described what he found at the scene, after Mr Downes had been removed. That was the first time that day he had been underground. He said that the place at which cleaning of an MRS machine took place depended upon the reason for the cleaning work. He could not recall problems raised about the cleaning work and while he had seen it performed, had never seen anyone go to the side of the machine to perform it.

73 Mr Grey's evidence was that the convenient point for stopping for maintenance would have been discussed on 20 July, because "generally speaking you would never leave a partially extracted lift and you would look to advance the MRSs (sic) as far as possible on completion of the extraction". If the equipment was not in a safe position for maintenance, mining would continue until it was considered safe. This was a decision for the deputy. A decision as to when maintenance was programmed for, would have been made at a planning meeting the week prior, with personnel going off shift and those coming on that day, finally considering whether it was safe to do the planned work. Mr Grey was involved in those decisions.

74 Mr Grey also gave evidence about changes made after 20 July 1999, in an area of considerable geological faulting, where he considered conditions to have been generally worse than in the area where Mr Downes was injured. A central pillar was left, which improved rib stability. They were, however, still as bad, or worse, than where Mr Downes was injured.

The cases advanced by the parties

For the prosecution

75 The case advanced for the prosecution by Ms Katzmann SC, appearing with Ms Nomchong of counsel, was that in relation to the prosecution in Matter Number IRC 4706 of 2001, at issue between the parties was whether Mr Downes' safety was at risk of injury from rib spall and whether the defendant had failed to ensure that the place of work was safe.

76 The evidence showed the risk was present and had earlier materialised in relation to other employees. Rib spall was unpredictable and anyone working on a roadway at the mine was subject to the risk. It followed that the place of work was unsafe, particularly where Mr Downes was found.

77 The evidence showed that the defendant had failed to eliminate or remove the risk and so Mr Downes' safety and that of other employees was not guaranteed. That Mr Downes was under unsupported roof was a red herring in the proceedings; it had not been established and did not matter. Even if he was, he was still at risk of injury from rib spall which extended to the roadway. It was submitted that "The concentration on the position where Mr Downes was found improperly diverts attention from the risk to the accident".

78 It was accepted that the prosecution was obliged to establish the causal nexus between the risk and the defendant's acts or omissions. It was argued however, that the evidence showed how the defendant had contributed to the risk, by conducting maintenance during fendering operations. The evidence established that the work should have been deferred, but was not.

79 It was also submitted that the defendant's decision to undertake routine maintenance on day shift without first requiring consideration to be given to the conditions prevailing, had contributed to the risk. The circumstances then present increased pressure on the ribs and the risk of injury from rib spall.

80 In relation to Matter Number IRC 4707 of 2001, the risk to safety was submitted to be the same. The issues between the parties were whether Mr Downes' safety was at risk of injury from rib spall and whether the defendant had failed to ensure that the system of work was safe.

81 The system involved "pulling out an MRS for maintenance, cleaning it out before the repair work (in this case the repair of an oil leak,) was undertaken and doing it on the day shift (the routine or scheduled maintenance shift) irrespective of the stage the extraction process had reached". The evidence showed that the decision as to when maintenance was to be carried out, was made the week before and maintenance was then performed, simply because that was when it was scheduled, or routinely performed.

82 Mr Downes was engaged in maintenance work on the MRS at the time of the offence. The system included cleaning out the machine and holes by hand, or tool and using a high pressure hose. This was unsafe because it exposed the employee engaged in the work to unnecessary risk of injury from rib spall. It was also unsafe to carry out scheduled maintenance, without first undertaking an assessment of the risk that prevailed at the beginning of the shift. It was highly unlikely any such assessment was made. If it was, the assessment was flawed. The circumstances prevailing increased the risk of injury from rib spall, but the work was not delayed.

83 It was also submitted to be irrelevant whether or not the work involved in the repair of the oil leak, could properly be described as routine maintenance or not, because Mr Downes was not engaged in that work. He was cleaning coal out of the MRS and that was part and parcel of routine maintenance. MRS machines were always moved away from the goaf line for routine maintenance. The gravamen of the charge was stopping mining mid-way through extraction, whether for routine maintenance or repairs, assuming there was a difference.

84 It was argued to be no answer to the charge to assert responsibility for safety was delegated to the deputy. The duty under the Act was non-delegable.

85 It was also submitted that the causal nexus was established by the decision which permitted maintenance to proceed, without any or any proper regard to the prevailing conditions. This contributed to the risk of injury and established the connection in the necessary way. Even if Mr Downes contributed to the risk, the causal connection was not severed. Employers were obliged to guard against even foolish disregard of personal safety. An employer must take into account that an employee might be injured as the result of negligence, if there is a foreseeable risk to safety.

86 It was further submitted that the evidence did not demonstrate that Mr Downes had deliberately put himself at risk. The rational inference was that his actions were impelled by inadvertence, preoccupation with the task at hand, or haste to complete the job, to permit mining to resume, or failure to recognise imminent danger, through ignorance or inadequate briefing. It was relevant that Mr Dodds had noticed Mr Downes in an unsafe place, but had been too preoccupied to think much about it. A safe system had to take this possibility into account. This was not a case where there was a novus actus interveniens.

87 The prosecution also advanced submissions as to the defences it anticipated the defendant might seek to make out. The defendant did not approach the defences entirely in that way. It is unnecessary to set out these submissions at this stage.

88 Submissions were also advanced as to the defence case and the evidence of Dr Galvin. It was submitted that his evidence in fact supported the prosecution case, in a variety of respects, which I do not here outline. Some of the evidence was submitted to be irrelevant to the charge. In so far as Dr Galvin's views on whether maintenance could, or should, safely have been deferred, it was submitted that his views were based upon the false premise that the MRS machine had actually broken down. It had not. It was speculation that it would break down. There was no evidence from which it could be inferred that it would not continue, as it had, until it could safely have been repaired in the cut through. It was also submitted that Dr Galvin's calculations were based on data from other mines, of little relevance to the matters here in issue. They were unreliable.

89 It was also argued that even if Dr Galvin's view that it was impractical to defer the leak was accepted, the prosecution case had been made out. His evidence confirmed the defendant's failure to ensure the safety of the workers against a high and ever present risk, which increased, the longer mining was delayed. He had agreed that there were a number of practical steps which could have been taken, to avoid or reduce the risk. The place and time at which the maintenance was undertaken, gave rise to a risk and the defendant had failed to ensure that the workers were not exposed to it. The defendant was unable to establish any defence and so the charges must be found to have been made out.

For the defendant

90 The case advanced for the defendant by Mr Buchanan QC appearing with Ms McManus of counsel, was that the prosecutor's submissions were advanced on a basis inconsistent with the offences charged. While various assertions were made as to risks to which employees generally were exposed, both charges were concerned with the particular risk to safety alleged to have arisen in respect of Mr Downes, at the place he was injured. The prosecution's final approach reflected the attitude it had adopted from the outset of the proceedings, in failing to confine itself to the charges in question.

91 Counsel also returned to various complaints advanced during the course of the hearing, in relation to the admission of evidence, said to have travelled beyond the charges. While admitted, the prosecutor's submissions and the evidence upon which they were based, were now argued to have well demonstrated the shifting nature of the case which the prosecution had pursued and the fact that the contested evidence was irrelevant to the charges.

92 Reference was particularly made to evidence pressed, even though not particularised, because it was said to relate to defences which the defendant might seek to make out. Various examples were pointed to, including the work methods involved in cleaning out an MRS machine and how employees had been trained in the work. Neither matters were referred to in the particulars and had no relevance to the charges, which were each expressly concerned with the place at which Mr Downes was performing work when the risk of injury was alleged to have arisen.

93 Submissions were advanced as to how Mr Anderson's evidence was led, as well as in relation to the views he expressed. His evidence was submitted to have been unsatisfactory, inconsistent with his obligations as an expert and given in a way which could do him no credit. It was argued that he had failed to make reasonable concessions and frequently shifted his ground, even when asked about fairly basic propositions. Reference was made to various aspects of his evidence, including some said to be inconsistent and irreconcilable with each other. It was also submitted that the prosecution case, that work should have been undertaken at a later time, even though obvious dangers would then arise, rather than when a position of relative stability was available, underlined that the prosecution was pursued, even when it became obvious that what was proposed was a series of increasingly unsustainable propositions, inconsistent with basic good mining practice and safety.

94 Other prosecution submissions were argued to have been put, contrary to the evidence. Reference was made to material contained in the documentary evidence and that of various witnesses, to show that some of those persons necessary to be called in order to make out particular propositions had not been called in the prosecution case. It was particularly submitted that the evidence had demonstrated that attention had, in fact, been paid by the defendant, to matters which the prosecution submitted had been neglected, including the decision as to whether to make the repair in the day in question.

95 It was also submitted that the evidence had demonstrated that the work on the MRS involved a repair, not routine maintenance. The machine had been located in a place different to that where routine maintenance was ordinarily undertaken. That place had ensured that the repair work required could be safely undertaken. It had not been shown that there was a relevant risk to safety by mining stopping, so that such work could be undertaken. Nor had the defendant been shown to be responsible for the position in which Mr Downes placed himself that day. Nor was it the defendant's system which had placed him in such a perilous position.

96 While the defendant had obligations, even in relation to careless employees, the evidence showed that it could not have foreseen what Mr Downes had undertaken that day. That had not arisen from any system which the defendant had in place. The evidence was that no one who gave evidence had ever seen anyone place themselves in such a position before. No obligation could arise to foresee such a foolhardy action. It was Mr Downes' role to stop this, no one else's. That obligation flowed from the CMR Act.

97 It was also submitted that the prosecution's submissions were factually incorrect in relation to the suggestion that the mine had failed to act on a recommendation made by Mr Anderson prior to the accident, in relation to leaving a central pillar. The evidence was to the contrary. It had also been wrongly submitted that the evidence was that the MRS was set to the roof. It was not. There was also no evidence from which it could be submitted that Mr Downes was under supported roof, contrary to the submissions advanced.

98 It followed that the prosecution had failed to meet the onus which fell upon it to prove the charge. No act or omission of the defendant had been shown to have caused the relevant risk to Mr Downes. The defendant should be discharged.

99 It was also submitted that the s53 defences had been established, if a contrary view were taken. The evidence showed that there was no way that rib spall could be prevented at a mine. Attempting to repair the MRS later than at the place where the repair was undertaken, had been shown to be more dangerous than where it was undertaken. This was so, even if Dr Galvin's views about the increased risk arsing from coal in the six heading not having increased the risk, were not accepted. The evidence showed that it was not reasonably practicable to guarantee that the machine would not break down later in the sequence. Reasonable practicability demanded that the repair be effected where it was and that the risks associated with carrying out the repair where it was, be managed. It did not permit the repair to be further delayed.

100 The fact that Mr Downes went where he did was not the fault of the defendant and was something over which it had no control. It was contrary to good mining practice and the established procedures and instructions. It was not reasonable to suggest that some further level of instruction, supervision and training was necessary. Indeed, the charge did not raise such allegations. The evidence showed that the defendant was not wrong in relying upon Mr Downes to supervise this work, given his role as deputy.

101 Many of the prosecution's suggestions were submitted to be at a high level of theory and without regard for the evidence. They ignored the judgments made by those called upon to make them and best fitted by their work and experience to do so. The evidence had shown that the defendant was right to make the required repair. It was not practicable to delay or to do it elsewhere. The defendant could not possibly have anticipated Mr Downes doing what he did. That was entirely beyond its control. The danger was obvious and within his understanding. It was his responsibility to deal with it and prevent it. All the proper procedures and controls were in place. The defendant was entitled and obliged to rely upon him.

102 Section 33 of the Act was also relied on. While it was pointed out that in opening, the prosecution had described Mr Downes as 'the most junior official' at the mine, suggestive of a need for supervision, it was submitted that the allegation that he was ill equipped and insufficiently informed, had not been made out on the evidence. The CMR Act permitted and obliged the defendant to rely upon Mr Downes in his role as deputy, while he was in charge of the work underground. Mr Downes himself accepted that he had obligations under that legislation, which he was obliged to carry out. The evidence showed that had he done so, he would not have been placed at risk. The defendant was entitled to rely upon him to do so. The prosecution filed extensive written submissions in reply, but only pressed these aspects which went to the defences which the defendant submitted had been made out. It is unnecessary to outline these submissions.

103 The prosecution also made a number of submissions in reply to the defendant's submission in relation to the defences, which I do not outline.

Consideration

104 The case as opened for the prosecution was that:

"I expect it will be common ground that coal mining is inherently dangerous work and pillar extraction mining is the most hazardous form of coal mining. For these reasons alone we expect the Court will readily find the charges proved and the focus will be on whether the defence is made out, namely, whether it is not reasonably practicable for the defendant to comply with the provisions of the act the breach of which constituted the offences or the commission of the offences, causes over which the defendant had no control and was impracticable for them to make provision."

105 This was resisted by the defendant, which submitted that the Act did not make it an offence for work in hazardous industries to be undertaken, subject only to a defendant making out a defence as provided by s53 of the Act. Given the structure of the Act, the defendant's submission must be accepted.

106 The evidence made abundantly plain that the operation of a coal mine, on a basis which ensures the safety of the workforce, as the Act requires, is an extraordinarily complex undertaking. So complex, that unlike other industries, coal mining is also subject to detailed regulation by the CMR Act, which deals with matters such as, who must be employed in the mine and their respective and particular responsibilities for safety matters. It also makes detailed regulation of matters such as the regular maintenance of mine equipment; dictates where and how work may be performed; provides for the training and accreditation of those who work in the mine; and makes detailed regulation of particular work to be performed, including the regular inspection of rib conditions.

107 The evidence demonstrated that there are no guarantees as to the way in which a coal seam will react to mining work being undertaken in any mine. Much is unpredictable. The science of rock mechanics which underpins geotechnical engineering, is still developing. Hazard assessment, as a consequence, is difficult both for operators such as the defendant and those persons particularly charged with responsibility for ensuring safety at coal mines, under the CMR Act.

108 The evidence also showed that some risks are so great, that they are expressly dealt with by the imposition of particular rules, such as that which applies to working under unsupported roof, which is entirely prohibited. This means, in a practical sense, that workers are entirely prohibited from entering the goaf, where a risk of roof collapse is ever present, or from approaching the coalface, where the roof is not supported and where the risk of rib spall is ever present. In accordance with the scheme established by the CMR Act, it is mine deputies such as Mr Downes who have the practical day-to-day responsibility for ensuring that such rules are enforced and obeyed underground, by all those who work there.

109 The effect of s33(2) of the Act is that in so far as the defendant's acts or omissions were expressly required or permitted to be done by the CMR Act, it is not guilty of any offence. (See s39 of the Act.)

110 I turn then to the charges here laid. They did not suggest that no work at all should have been undertaken in this mine, or in this particular area. The weakness and instability of the ribs was not, of itself, sufficient to prove the offence charged. Were such a view to be reached, it is difficult to see, on the evidence, how coal mining could ever be undertaken, consistently with the statutory obligation to ensure safety. On the evidence, the risk of rib spall is commonplace in coal mines. That is undoubtedly why it is expressly dealt with in the CMR Act, in a number of ways.

111 The charges were rather concerned with a part of panel 413, where particular risks were said to have existed. The prosecution described this as the risk of injury from rib spall. There was also an issue as to the safety of the system of work. There was no doubt on the evidence led that on the day in question, Mr Downes was working in an area of the mine where the ribs were weak or unstable and the risk of rib spall existed. While the particulars in both charges referred to "geological faults and weaknesses" at 413 panel, the evidence did not suggest that they had any particular connection with the state of the ribs at the place where the events here in question occurred, at seven heading. Those faults and weaknesses lay in another part of the panel. Nevertheless, there was plainly a risk of rib spall present at the site in question.

112 The evidence also showed that working in the area in question was hazardous. The evidence did not, however, permit the conclusion that it was so hazardous, that like working under an area of unsupported roof, working in an area where the ribs were weak and unstable should have been entirely excluded on safety grounds, in order to ensure that the defendant complied with its obligations under the Act. Nor does the CMR Act so provide. The evidence was that similar levels of rib spall occurred at other parts of this mine. The evidence also showed that changes introduced by the defendant after the accident improved the conditions of the ribs, but not significantly. There was no suggestion that mining should not have continued in those circumstances. The evidence also showed a number of steps available and implemented by the defendant to deal with the risks which such ribs pose. Some of them were expressly imposed by the CMR Act. The evidence did not permit the conclusion that such steps could not ensure safety, if observed. Nor was such a case sought to be established.

113 There is no doubt that the prosecution is limited to the charges particularised, as the defence argued. Not every particular must be made out, in order for a conviction to be recorded. The charge will not, however, be established on the basis of evidence which might have made out some other offence. As the prosecution accepted, it must also establish the necessary causal connection between the risk in question and the acts and omissions of the defendant.

114 As I have noted, on the evidence there is no doubt that on 20 July, Mr Downes was exposed to a risk of injury from rib spall. The risk materialised when Mr Downes was buried by a rib fall. The risk arose in circumstances where a major oil leak on an MRS was being repaired, while production had ceased, mid fender. Mr Downes was then engaged in cleaning out coal from the MRS machine. The evidence showed that while this was a somewhat frustrating task, it was not a particularly difficult one, involving the removal of lumps of coal by hand, tools and hose.

115 Mr Downes was buried by rib spall, falling away from the coalface located on the left hand side of MRS 1. There was no doubt that he had positioned himself between the coalface and the left hand side of the machine and that it was his position there, which exposed him to the risk in question.

116 The evidence also showed that the place where Mr Downes was injured was not a place where any work was normally undertaken by anyone at the mine. It was outside the area of supported roof, in a place where the roadway had been considerably widened, in order to allow the MRS to be brought out from its position at the goaf edge, adjacent to the other two MRS machines there supporting the roof. This made the danger of that particular place even more apparent than might otherwise have been the case. Curiously, despite the allegation in the charges that the area had no supported roof, (see particulars (j) and (f) respectively), it was finally the submission of the prosecutor that this had not been made out on the evidence and was irrelevant to the charges. The defendant argued to the contrary, that the evidence was clear. I agree.

117 On Mr Beatty's evidence, it was a matter of surprise that Mr Downes should have placed himself into such an obviously unsafe area, inconsistently with his own express obligations under the CMR Act. He was obliged to ensure that work was not undertaken under unsupported roof. Mr Anderson's evidence was rather more equivocal, but when pressed, agreed that this area was unsafe. Other witnesses agreed. Mr Beatty's view was that it involved Mr Downes in a breach of the regulations. It was Mr Downes, as deputy, who had direct responsibility under the CMR Act and the defendant's policies and procedures, for ensuring that these rules were obeyed by those who worked underground at this mine, while he was there on duty.

118 Mr Downes had no hesitation in accepting the nature of the obligations imposed upon him by the CMR Act. He, however, had no memory of what had occurred on the day, or why he had placed himself in such an unsafe position. He conceded in cross examination that if he had found another worker in that position, he would have required him to move. On the evidence the concession was properly made, given the requirements of the CMR Act.

119 The prosecution, nevertheless, submitted that it was the defendant's system of work which had resulted in Mr Downes being where he was performing the cleaning work, when exposed to the risk in question. I am well satisfied that this was not established on the evidence. The prosecution case was that Mr Downes was performing maintenance work on the MRS at that time. The evidence was that he was cleaning out pieces of coal which had fallen inside the MRS, at a time when Mr Dodds was working on the repair of the oil leak, work which had been assigned to Mr Dodds by his supervisor that day and which he was performing alone. Mr Dodds did not require or seek any assistance with that work. Mr Downes did not tell him what he was doing or why, when he approached the MRS machine. He simply started cleaning out coal, without saying anything. Mr Dodds had his back turned.

120 Such cleaning work was undoubtedly a part of routine maintenance on the machine. The evidence of all of those employed at the mine who were asked about the matter, showed, however, that the system in place involved such maintenance work being undertaken at quite a different location, to that at which the MRS machine had been moved that day. Maintenance work was normally undertaken away from both the face and the goaf, a road away from the extraction area, where the ribs were better. There is no reason why that evidence should be rejected.

121 The MRS was, in fact, located near the goaf edge and the coalface, not far from where the other two machines were still supporting the roof. It had been moved there by Mr Dodds, expressly in order that he might safely gain access to the machine under supported roof, in order to repair the oil leak in the machine. There was no doubt that he there had safe access to the machine for his work. He was hoping that it would be a quick job. Given the evidence as to the rib which fell on Mr Downes, towards the machine away from the coalface, and the position where Mr Downes was found, buried by large lumps of coal against the left side of the machine, there can be no doubt that he had moved to the side of the machine, between it and the coalface, in an area of unsupported roof. The defendant's system did not require him to be there. To the contrary, it required him not to be, as did the CMR Act.

122 The prosecutor also submitted that this situation can only have resulted from inadvertence and because, in the dark of the coal mine, mistakes in relation to an area of unsupported roof could easily have been made, especially on a maintenance shift, when Mr Downes had many responsibilities and he was hurrying to cover all of the work to be done.

123 Mr Downes was a deputy of over 20 years' experience. As the prosecutor submitted, the evidence did not suggest anything other than that he was very conscious of his obligations in relation to safety and ordinarily acted to ensure that they were met. There was no evidence from which it could be concluded that he could easily have strayed inadvertently into an area of unsupported roof. This was contrary to his own evidence as to his approach and that of Mr Dodds, whose evidence was that while the mine was dark, the roof bolts which showed where the roof was supported, could easily be seen.

124 While the MRS machine itself usually provided support for the roof at the edge of the goaf, it had been moved out of its position and had not been set to the roof after Mr Dodds had moved it. The reason for that was obvious, on the evidence. To do so would have broken the roof supports, making it an area of unsupported roof, where no work could be performed, once the MRS machine was moved again. Such a step would have reduced the amount of coal which could have been extracted from seven heading. On the evidence such a step would not lightly have been taken by the defendant. It would have led to a deterioration in the stability of the ribs, a situation which, on the prosecution case, had already been exacerbated by the coal which had to be left in six heading.

125 The fact that the MRS was not set to the roof, was, however, not crucial to the question of the safety of the place where Mr Downes placed himself to clean coal out of the MRS.

126 The MRS machine itself carried a prominent warning label, reminding that beyond the machine, the roof was not supported. The area to the side of the machine was plainly not only unsupported, on the evidence it was an area of obvious danger, for other reasons, which would have been well apparent to Mr Downes. The road had there been widened, in order to permit the MRS to be brought back from the goaf edge and the other two machines. That put beyond doubt that to the left side of the MRS was unsupported roof, in an area where the road had been widened beyond the maximum allowable 5.5 metres. While the location of the MRS gave Mr Dodds safe access to gain entry to it under supported roof, the left side of this machine was not only under unsupported roof, in the ordinary way, it there lay exposed to the coalface, where the risk of ribs falling was ever present.

127 All of the evidence was that this was not a place where any work, let alone maintenance work or the work of cleaning the coal from the machine, was ever undertaken on that MRS.

128 The evidence also showed that the weak and unstable state of the ribs in this part of the mine had been the subject of constant attention and monitoring by the defendant at that time, as required by the CMR Act. It had been the subject of consideration by Mr Anderson, who had, as a result, advised the defendant to mine in a certain direction. That advice had been followed. It was also the subject of ongoing inspection, attention and reporting by the mine deputies, including Mr Downes, in the preceding shifts. While a mechanical means to avert danger from falling ribs was not technically available to the defendant, like the support of the roof provided by MRS machines at the goaf edge, danger from falling ribs was averted, by the deputies ensuring that the defendant's policies and the provisions of the CMR Act, which required that work was not undertaken in the areas where the risk of such rib spall was present, were enforced. Dr Galvin's view was that these measures, had Mr Downes adhered to them, would have kept him safe on the day in question.

129 These matters are of some significance to the question of whether or not the prosecution established the necessary causal connection between the risk to which Mr Downes was exposed and the defendant's acts and omissions. The evidence clearly showed that it was not as the result of any system established by the defendant, or any direction given to Mr Downes, which led him to perform this cleaning work, in a place where he was at obvious risk of rib spall. To the contrary, the defendant's policies and procedures, consistently with the CMR Act, required that no work be undertaken there. The evidence did not suggest that such policies and procedures were not enforced. The evidence was to the contrary. It was Mr Downes who, while working underground, had the ultimate authority to direct that particular work be undertaken and to ensure that if anyone went into such an area, that they were removed.

130 As has been observed in the cases, employers may not delegate their responsibilities under the Act to others, even supervisors employed to ensure safety in a practical sense. Employers must also make provision even for those employees, who act in foolish disregard of their own safety.

131 In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Limited (2001) 105 IR 81, the Full Court observed at [45]:

"The duty to provide a risk-free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248."

132 Nevertheless, in some cases, including the case of a supervisor with particular training, experience and responsibility for safety in the context of a particular system of work, an employer will not be found responsible for their unforseen acts. (See the discussion of the majority in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121.) As was observed in Cullen v State Rail Authority, the defendant need not prove that the events in question were not caused by it. If the evidence raises a reasonable doubt as to whether the risks were caused by the defendant's acts or omissions, the defendant is entitled to the benefit of that doubt.

133 Unlike Fletcher Constructions, the evidence here showed a system of work, which included responsibility for safety resting with a qualified, responsible deputy always present underground, as required by the CMR Act. The system also contained detailed mechanisms whereby the defendant satisfied itself that its systems were implemented. They included the requirements imposed by the CMR Act in relation to inspection of the mine, supervision of work and reporting by deputies and the supervision of the deputies themselves, by the shift undermanagers, who were also obliged to go underground, each shift and then to make their own reports.

134 There were established rules as to where work could be undertaken and procedures established and implemented for ongoing assessment by the deputies and undermanagers, as to the safety of work being undertaken and work being halted, or deferred, if considerations of safety required such steps to be taken. The evidence did not leave open to doubt that the defendant's system, which required that work not be undertaken at the place where Mr Downes ventured, was certain, known and enforced, in a general way and more particularly, by Mr Downes himself, while on duty underground. Given the requirements of the CMR Act, the many years that Mr Downes had worked as a deputy, his own evidence as to his understanding of his obligations and the evidence of others employed at the mine as to the existence of these systems and how they were enforced, there could be no doubt that the defendant acted to ensure that these systems were adhered to.

135 The defendant's submission was that this was not a case where it could be held responsible for the unforseen acts of the deputy on duty. On the evidence, the submission was plainly made good. This conclusion must flow, given the evidence of the obligations imposed by the CMR Act upon both the defendant and Mr Downes as a deputy; the requirements particularly imposed by that legislation in relation to safety, including relevantly in relation to the risk of rib spall and roof fall and the evidence as to how those obligations were met by the defendant and Mr Downes. There can be no doubt that this employer was conscious of the risk of rib spall and took steps to preclude those risks giving rise to injury. On the evidence, had they been adhered to the risk of injury would not have arisen. The steps taken by Mr Downes to perform cleaning work on the MRS in an area of unsupported roof, which put him in proximity of the ribs, were plainly not foreseeable and indeed were entirely inexplicable. It is impossible on the evidence to overlook the possibility that in his familiarity with his obligations, Mr Downes disregarded that he was obliged not to place himself where he did.

136 The evidence of Dr Galvin was that Mr Downes would have remained safe from the rib spall which injured him, had he not ventured into the area to the side of the MRS machine. This cannot be overlooked in considering questions of causation. While Mr Anderson and Mr Beatty's evidence conflicted with that of Dr Galvin in a variety of respects, there was no real disagreement about this.

137 It was submitted for the prosecution that the evidence showed that Mr Downes would have been injured, even if he had remained on the roadway, under supported roof. I am satisfied that this was not made out on the evidence. Dr Galvin's measurements of the accident site do not permit that conclusion to be drawn. Nor do the photographs in evidence, taken many hours after the events in question, after the coal which had fallen on Mr Downes had been lifted away, proved a reliable basis for such a conclusion.

138 The particulars also alleged a failure by the defendant to defer the work in question, until a stable position was reached (particulars (h) and (d) respectively). There were issues between the parties, both as to whether or not it was safe to halt production at that stage and whether or not it would then have been safe to continue mining, rather than then stopping to repair the MRS machine.

139 I note at this point, that one of the submissions advanced by the prosecution was that the repair of the oil leak was, in fact, irrelevant to what Mr Downes was doing, because he was engaged in cleaning out coal from the machine. This can only have involved maintenance work, not required for the repair of the MRS. That submission, if correct, cannot make out the charges. The evidence was that Mr Dodds had been assigned to repair the oil leak by his supervisor. That person was not called. The evidence called from the mechanical engineer, the officer in charge on duty on 20 July, Mr Dixon, was that face-to-face contact was made with the fitters by the level 4 supervisor who reported to him. He was not asked about the decisions which resulted in Mr Dodds being instructed to undertake the repair of the oil leak that day. He merely confirmed that scheduled maintenance was then carried out on the day shift, on a weekly and monthly basis.

140 The evidence showed that the machine had been positioned as it was, in order to permit Mr Dodds to safely undertake the repair work, by giving him access to the machine under supported roof. That was not the place where regular maintenance work on the MRS, including cleaning such as that which Mr Downes undertook, was usually carried out. To the contrary, the place in which Mr Downes positioned himself to do that work was one of obvious danger, where no one, underground, was permitted to go. It was Mr Downes' statutory responsibility to ensure that no one did. He was also in direct control of all work undertaken on that shift. It can only have been his decision to clean out coal from the machine, in an obviously unsafe place, where such work was never undertaken, inconsistently with the CMR Act and the established system.

141 It is relevant in this context that the charges also alleged that the work being undertaken on the MRS machine was scheduled maintenance (particulars (i) and (e) respectively). The evidence showed that while attention was paid to oil leaks during scheduled maintenance, the repairs here being attended to were not merely a part of the routine maintenance scheduled weekly. This machine had been leaking very substantial quantities of oil, of itself an obvious safety problem, over a number of shifts.

142 It was also submitted, however, that the system of weekly maintenance of the MRS machines had fallen away and that this had led to the magnitude of the leak which required repair on 20 July. Exhibit 23 was particularly relied upon. I do not accept that this was made out. The submission did not pay sufficient regard to the evidence given by the witnesses, as to how such maintenance work was performed and when, nor to the shift reports.

143 The prosecution also made submissions as to the absence of a specific risk assessment for this cleaning work and the fact that employees had been given no particular training in how to do the work. These matters cannot make out the charges here in question. Given the simple nature of the work involved in cleaning coal out of an MRS machine, the conclusion that particular training was required in such work was not sensibly available. Nor can there have been a need for any particular risk assessment. The evidence showed that no work was to be undertaken at the mine in any area of unsupported roof, near the coalface, where a risk of injury from rib spall existed. Employees were well trained in such matters and they were the subject of constant supervision as to compliance with them. Such work was not ordinarily undertaken where the MRS machine was positioned, in order that Mr Dodds might repair the oil leak.

144 Returning to the allegation in the particulars, that there was a failure by the defendant to delay 'scheduled maintenance', I observe that given the defendant's other submissions, these particulars raised two possibilities. Were the particulars referring to the cleaning work Mr Downes undertook? The evidence was that he did not usually perform such work, although he sometimes assisted in the performance of such work, while undertaking his supervisory duties. It was, nevertheless, Mr Downes who decided to undertake the work that day. Mr Dodds had not sought any assistance in the work he was doing.

145 On the evidence it is difficult to see how the undermanager, to whom Mr Downes was responsible and who was then above ground, should or could have required him to delay the cleaning work he had decided to undertake. Mr Downes was in charge underground as required by the CMR Act. The undermanager and mine manger were above ground and unaware of what work Mr Downes was actually performing from moment to moment. Mr Downes could have delayed the cleaning work, and indeed, should plainly never have undertaken it, had he complied with the requirements of the CMR Act, and had the work been undertaken where it was usually performed.

146 If the work referred to in the particulars was that of repairing the MRS, or maintenance work on the machine generally, there seemed to be a gap in the prosecution case. The prosecution argued that the defendant had failed to give any consideration as to whether or not it was safe to stop for maintenance on the day shift on 20 July. Inspector Beatty's evidence was that this question should have received consideration by the undermanager and the engineer. The absence of such consideration was not made out on the evidence.

147 The evidence showed that maintenance shifts were ordinarily scheduled to take place on day shifts and were programmed about a week in advance. It also showed, however, that the time and place at which production actually ceased and maintenance commenced on such a shift, was a decision made on that day, having regard to the stage that production had reached, when the shift started, having in mind the requirements of safety. Under the CMR Act the mine manager and the undermanager on the shift had ultimate control of the work actually done on the particular shift, with the deputy having direct and immediate control of what was done underground. If production was to be delayed or maintenance deferred, the deputy was required to consult with the undermanager.

148 The prosecution put to Dr Galvin in cross examination, that it was the outgoing undermanager, who made the decision as to the work to be done on the next shift, under the CMR Act. The evidence showed that on 20 July, the outgoing undermanager in his report noted that the oil leak on MRS1 required repair. There was a system of outgoing deputies and undermanagers conferring with those incoming. The evidence showed that on 20 July it was decided that the oil leak should be repaired on that day shift. While evidence was called from Mr Sutherland, the mine manager, Mr Grey the undermanager on the day shift and Mr Downes, there was no evidence called from the outgoing undermanager on the preceding night shift, or the deputy of that shift.

149 It was the view of Mr Grey and Mr Downes, who were both involved in the decision as to the work to be done that day, that it was safe to have undertaken the repair work of the MRS on the day shift on 20 July. Mr Sutherland agreed. Dr Galvin agreed that it was safe to have then undertaken that work. Inspector Beatty and Mr Anderson did not agree. Yet there was no evidence called from those who worked on the previous shift, to explain why it was decided that the MRS machine should have been repaired on the day shift. It follows that the inference that no consideration had been given by the defendant to the safety of that work, or maintenance work generally then being undertaken, was not available on the evidence.

150 The evidence also showed that some production difficulties had been encountered in the previous shifts, with guttering and an excessive amount of coal being left in six heading as a result. Whether this contributed to the decision to have the oil leak repaired on the day shift, rather than that work having been undertaken on the night shift, as the outgoing afternoon shift undermanager had directed, cannot be known. Contrary to the prosecution submission however, the inference that the repair had only been delayed because the day shift on 20 July was the usually scheduled maintenance shift, was not available.

151 To the contrary, the undermanager's shift reports showed that this oil leak had been a problem for some shifts. On the day shift report for 19 July, a production shift, it was noted that the machine had to be filled with oil twice, a total of 260 litres. The work required by the undermanager was noted as "check out No1 MRS for oil leak". 110 cars were filled. On afternoon shift, another production shift, it was reported that there was no rear leg function on the machine, there had been a mechanical check and it appeared OK. It was filled again, with 260 litres of oil. The work required was noted as "Repair No 1 MRS oil leak". 108 cars were filled. The night shift report, another production shift, showed however, that the repair work was not undertaken. There was no explanation for this recorded. The report indicated that the MRS was filled again, with 200 litres of oil. Again, work required was noted as "Fix oil leak MRS 1". Only 83 cars were filled that shift.

152 There was no evidence called as to why the oil leak was not repaired on the night shift, as the afternoon shift undermanager had directed and why the night shift undermanager on that shift required it to be performed on the next shift. It follows, as I have noted, that the inference that no consideration was given as to whether or not that work could then safely be undertaken, was not available.

153 I am also satisfied that the evidence as to whether or not the place at which production was halted was sufficiently stable to safely permit that course was such that it cannot safely be concluded that the prosecution has made out this aspect of the charge, to the requisite degree. I have come to the conclusion that Dr Galvin's view, that safety required that extraction of the fender not continue and that the oil leak of the MRS be attended to at that point, cannot properly be rejected.

154 The law is clear in a circumstance such as this. If there is an acceptable hypothesis reasonably consistent with the innocence of the defendant, it is entitled to the benefit of that hypothesis. Dr Galvin's opinion undoubtedly provides such a hypothesis.

155 Mr Anderson disagreed with the methodology upon which Dr Galvin's views were based. The experts also disagreed as to a variety of factors impacting upon the question of whether the location at which mining halted was stable, including whether the coal left in six heading exacerbated the weak state of the ribs. Their disagreement about various matters was vehement. The end result of my consideration of all of the evidence, was that I could not come to the conclusion that Mr Anderson's views could properly be preferred to those of Dr Galvin's. The evidence of the nature of coal mining and the state of knowledge of matters such as rock mechanics and other underpinnings of scientific understanding in this field, made this conclusion unavoidable, as did other reservations which I had about Mr Anderson's evidence and the submissions which were advanced in the prosecution case.

156 The evidence showed that while ever the MRS machine remained operational, its oil could be topped up by use of the machine hydraulics. If the hydraulics failed entirely however, further problems emerged. Firstly, the machine could no longer perform its function of supporting the roof near the goaf edge at all, thereby giving rise to obvious risks for those working in the vicinity. Secondly, a need to manually fill the machine with oil, if the roof then remained supported, could arise. If the roof was not supported, the machine would then have to be pulled to a position of safety under supported roof, so that work could be undertaken. If that could not be done, the machine would have to be abandoned in the goaf. Once the machine was moved, if that were then possible, difficulties of returning it to its original potion alongside the other MRS machines, would arise. The risk of coal then not being able to be mined, would be another problem which would have to be faced. This too, gave rise to other safety risks, explored extensively in the evidence. All of these risks would have been further exacerbated, if the machine broke down close to, or in the intersection, towards which the mining was progressing. On the evidence the incidence of serious mining accidents is highest, at or near such an intersection.

157 The case advanced for the prosecution was that there was no need for any of these possibilities to have been given consideration by the defendant at the time the decision to repair the MRS machine was made on 20 July. It was then obliged to ensure safety. That, it did not do when Mr Downes was injured, because the place at which the work was undertaken was not stable; production halted, inconsistently with the requirements of the pillar extraction manual and as a result, Mr Downes was exposed to risk of rib spall. These submissions found support in Mr Anderson's evidence, but not however, that of Inspector Beatty. The view he expressed was that consideration should have been given to the question of whether the leak could result in the machine becoming dysfunctional and how best to do the repair safely.

158 The prosecution case was that if the defendant had continued to mine, as it was obliged to do, given its obligations under the Act, and there had been a subsequent break down of the MRS, it would still have been obliged to ensure safety in any circumstances which then confronted it. It was pure speculation that such a breakdown would have eventuated and this line of argument only wrongly deflected attention away from the defendant's obligations, at the time that these offences were committed.

159 So understood, it was very clear that the issues lying between the parties depended substantially upon whether or not the place at which the work was undertaken was proven to be unstable, as the prosecution submitted. As I have noted, that was not made out on the evidence, to the requisite standard.

160 The nature of the disagreement between Mr Anderson and Dr Galvin, was of the most direct kind. The defendant was very critical of Mr Anderson's evidence and the prosecution's approach to it, given the obligations which expert witnesses have and the obligations which fall upon prosecutors.

161 Having considered the respective submissions and the evidence, I have concluded that there was some basis for the defendant's complaints. Mr Anderson had last been to the mine not long prior to the rib collapse which injured Mr Downes. It was submitted for the prosecution that the evidence showed that the risk was foreseeable and that the mine had ignored advice which Mr Anderson had given, which would have addressed this risk. Having considered this evidence in detail, I have come to the conclusion that the submissions advanced as to these matters were not open. A proper reading of the correspondence in question and the evidence given by Mr Anderson about it, especially in cross examination, does not leave open the conclusion that the mine had ignored any advice which Mr Anderson had given it. It later obtained other expert advice which was to the contrary effect. It then acted upon that advice. While the prosecution also relied upon that development, even though Mr Anderson disagreed with some aspects of that advice, the evidence was that there was not much improvement in the state of the ribs, as the result of the implementation of the advice.

162 It must be observed that Mr Anderson's evidence came forward in the proceedings in a somewhat unusual fashion, given the time at which Dr Galvin's first report had been served by the defendant. Mr Anderson then produced a report in response. Dr Galvin produced a second report, addressing matters then raised by Mr Anderson. The impression given was that as a result, the debate between the experts had become rather defensive, from Mr Anderson's point of view. To illustrate the point, a more dispassionate approach upon his part might not have resulted in opinions being expressed in language not reflective of some of the facts underpinning them. Mr Anderson spoke of the requirements of the pillar extraction manual as reflecting a requirement that production might only cease mid extraction, if an MRS had 'absolutely broken down'. That was not what the manual provided.

163 Mr Sutherland's evidence was clear on this point. In his view the MRS had not absolutely broken down, when the repair was undertaken, but a discretion provided by the manual had been exercised to undertake the required repair at a particular place, mid extraction. This evidence was consistent with the undermanager's reports and the evidence of Mr Grey and Mr Downes, as well as the manual itself. The manual plainly provided a discretion for such a step to be taken. In cross examination, Mr Anderson, nevertheless, persisted with a denial that such a discretion existed. It was impossible to reconcile his evidence with what the manual provided.

164 As I have noted, Mr Beatty's evidence supported some, but not all of Mr Anderson's views. For example, he took the view that the machine had not broken down, provided oil was kept up to it and that manual handling of 20 litre oil cans to keep up the oil to this machine so that extraction could continue, was not unsafe. He however, conceded that much would depend upon how access to the machine could be gained and real difficulties could arise in that work being undertaken safely, as the intersection was approached. His approach was that it would always be necessary to gain access to the machine under supported roof and if that was not possible, he envisaged the machine being trammed out, whenever it required oil. Mr Anderson did not readily make such concessions. His views were also plainly coloured by his assessment that further mining work required to reach a point which he regarded as safe for the repair to be undertaken, would only take a few hours.

165 Dr Galvin had entirely the opposite view. Not only did he regard the place at which the repair was undertaken to be safe, he regarded the approach advocated by Mr Anderson and Inspector Beatty as to delaying the repair to the machine as inherently unsafe and unnecessarily exposing the workers to risk of injury. Given the evidence of the purpose of the MRS machines, located at the edge of the goaf to there support the roof; the problems to which it had already been subject for some shifts; the way in which oil would have to be kept up to the machine; the problems of safe access to the machine; the need to remain under supported roof at all times; the conditions of the ribs; the concerns flowing from coal not having been extracted in the 6th fender and the risk that the same would result in the 7th fender, if coal had to be left behind, as the result of the need to fill the machines with oil; as well as the risks inherent in attending to the machine, if it broke down near or at he intersection, I am unable to prefer Mr Anderson and Mr Beatty's opinion on these matters over that of Dr Galvin.

166 The result of their competing views was a very significant disagreement as to which approach to the repair of the machine would ensure safety and which would pose more significant risks. The experts' opinions about the correctness of the views that others were expressing, were forcefully put. It was relevant in that respect, that while Mr Anderson resisted this proposition, even Mr Beatty accepted that it could not be said that mining should never be stopped mid extraction.

167 Mr Anderson's oral evidence also made clear that he disagreed with the evidence of those present on the day of the accident, that there had been significant goaf falls that morning. This was relevant to a consideration of the state of the ribs at that time and the stability of the place at which mining ceased. Mr Anderson's view was formed on the basis of his inspection of photographs taken a number of hours after the accident and his experience that mine workers were not necessarily able to recognise the size of a goaf fall, from its effects. He did not himself attend that day. He discounted the views of these mineworkers, despite his other evidence that at the time there was considerable concern about irregular and unpredictable caving at the mine, with experience being of no caving at all, for periods as long as three pillar extractions.

168 He also disagreed with some of the views expressed by the defendant's geotechnical advisers after the accident. Shortly prior to the accident he had advised the defendant that they should mine uphill, away from the site of a geological weakness at the cutter sheer zone. This, he explained, would enhance caving, the matter about which he was concerned at the time, given the state of the ribs. Shortly after the accident the mine received the opposite advice - to mine towards that zone, so as to prevent guttering. In the view of the geotechnical advisers, this would have reduced the likelihood of rib spall. Mr Anderson disagreed. He also explained that he did not have concerns about guttering at the time, even though that was apparently a factor which had contributed to the coal left in the six heading. Mr Anderson was of the view that leaving coal there was a factor which had increased the risk of rib spall in 7th heading, one of the reasons why mining should not have stopped in order to repair the oil leak. He, nevertheless, disagreed that guttering would increase rib spall.

169 Mr Anderson also disagreed with many of Dr Galvin's views, as I have noted. I was finally left with the impression that Mr Anderson's views were somewhat coloured by the benefit which hindsight provided and that they were expressed with a gloss, which a strict adherence to accuracy could not warrant. To illustrate this point I note that in one of his affidavits, Mr Anderson said:

"Indeed the mine's own Pillar Extraction Rules state that extraction should only be halted when partially through the extraction of a pillar if the machinery is absolutely broken down. That was not the case here. The MRS was still functioning. Dr Galvin seems to be trading the possibility that MRS1 may have broken down completely at a more dangerous part of the pillar extraction. That is not a proper approach given that MRS1 had been functioning with the oil leak throughout the two previous shifts and there was no indication that a complete breakdown was imminent. There is no reason why the MRS could not have been topped up with oil as it had been until the extraction was complete."

170 The pillar extraction rules in fact provided:

· If a MRS is broken down, mining must cease until repairs can be effected. The area is secured and if the area is unsupported it must be supported before repairs are undertaken. If it is not practical to support the area the miner extraction device must be used to pull the MRS into a secure, supported area before repairs are carried out.

1. The safety of personnel and machinery in the pillar extraction panel is PRIORITY.

2. Every effort shall be made to ensure that partially extracted fenders do not stand for more than a few hours unless extenuating circumstances such as a machinery breakdown occur.

3. Prior to halting operations (e.g. maintenance) the under-manager and supervising production mineworker must assess conditions in the panel. Criteria for handling or continuing operations will be based on the following factors:

· The conditions encountered in the previous fender

· Conditions in the current fenders

· Caving (regular, uncaved)

· Weight in the area (low, heavy)

· Geology (faults, dykes, joints)

· Recovery (complete, stooks, partial fenders left)

4. Extraction shall not be halted if:

· The manager, under-manager or supervising production mineworker deem that in the interests of safety that extraction must continue.

· A lift remains uncompleted.

· There is insufficient coal left in the fenders to ensure the stability of the mining area.

5. At the completion of a production shift in a cycle the production supervising mineworker must report the exact distance left remaining in the fenders and the locations of the MRS's (sic) on his production report and the coal removed, ie ???? plan accurately.

6. When operations are halted the MRS's (sic) are to remain in position and set to the roof at 200 bar.

7. The continuous miner must be parked in a safe and secure area after operations are halted.

8. Where extraction has been halted the area must be regularly inspected by a production supervising minework to ensure that the MRS's (sic) are secure and that they are not being subjected to any excessive loading.

171 In cross examination, Mr Anderson sought to explain how his views could be reconciled with the actual terms of the pillar extraction rules. I cannot accept that evidence as convincing. He also went on to express the opinion that a consideration of how long it might take to continue extraction of coal, before the oil leak could safely be attended to, was not a matter to which any regard should have been had by the defendant, given the provision of the rules. There was, it seems to me, a problem with such an approach to the rules. It gives rise to the risk of the pillar extraction rules being elevated beyond the considerations of safety which the Act required the defendant to ensure. It cannot be doubted that if adherence to the rules gave rise to a risk to safety in particular circumstances, the Act would not permit adherence to the rules.

172 In this case, if failing to stop to repair the oil leak, would have led to increased risks, as was Dr Galvin's strongly held view, it cannot be concluded that adherence to the requirements of the Act, to ensure safety, would have been achieved by the continuation of mining.

173 Mr Anderson was of a different view. He also estimated that further extraction necessary to reach the place he regarded safe, would have been completed in a couple of hours. This view was based on a mathematical assessment, which paid no regard to the defendant's experience at this mine. While Dr Galvin agreed that such a place would be a safer place to undertake the repair, his assessment, confirmed by mining experience in that part of the mine, was that the work would have taken up to two shifts. Mr Anderson had not provided the basis of his mathematical calculations in his report. His estimates were not only inconsistent with Dr Galvin's, but also with the mine's experiences. Mr Anderson in fact regarded actual mining experience as irrelevant to this assessment and in any event, regarded the entire issue as irrelevant to the question of what safety required that day. It was his view that safety required that mining continue at that point, irrespective of how long it might take for the point of safety he had identified to be reached. I am well satisfied that it was simply not possible to prefer Mr Anderson's evidence on these issues.

174 The consequences of any decision, whether to stop or to continue mining, was plainly relevant to the decision made that shift that mining should halt and the MRS be repaired. A consideration of whether or not the MRS machine would continue to operate for a sufficient period to permit a later point of safety to be reached, would have been a necessary consideration in deciding to continue. I am satisfied that Dr Galvin's view that the place where production had stopped was a safe one for the work in question to be undertaken and that the course advocated by Mr Anderson posed higher risks, cannot be ignored.

175 The evidence that rib spall was not only a risk which arose when mining ceased, was also relevant to this conclusion. The risk was ever present. The rib spall which occurred did not necessarily result from extraction having halted, although that plainly contributed to it then occurring. Had mining continued, Mr Downes is, of course, unlikely to have gone to the position where he was injured. Nevertheless, the evidence did not permit the conclusion that by continuing mining despite the state of the MRS, safety would have been assured.

176 It follows that it was not possible to prefer the prosecution's approach to what the Act required in the circumstances which here arose. On 20 July, a decision was made by those responsible therefore, to stop production, in order to repair the MRS. On the evidence, there was a risk of rib spall at that point. There were increased risks to safety later in the extraction sequence, if the repair was not effected and production then had to cease in order to effect the repair. The risk of complete breakdown of this equipment, if the repair was not undertaken, was high. The machine's function had already been impaired. The work of filling the machine with oil was itself not risk free. The closer the work came to the intersection, the greater the risks, both of filling the machine with oil, or undertaking the repair, if the machine failed and the more difficult it would then be to ensure safety. The production work required to reach a point of total safety may have taken up to two shifts.

177 I do not accept that these were irrelevant considerations, in the defendant determining whether or not to exercise the discretion available to it under the pillar extraction manual, to halt extraction. More importantly, they were considerations which the defendant was obliged to take into account, having regard to the requirements of the Act.

178 While it was put to Dr Galvin, that it would have been safer for the defendant to have undertaken the repair earlier, a proposition with which he agreed, the charge was concerned with a failure to delay the repair, not a failure to have undertaken a repair earlier. That no doubt explains why there was no evidence called from those responsible for not having repaired the MRS earlier, such as the undermanager on the afternoon shift on the previous day directed.

179 The decision having been made to undertake the repair on the day shift on 20 July, there was an obligation which fell upon the defendant to ensure safety. It was not established that it was unsafe to halt mining at the place where the repair was undertaken that day. The risk of injury from rib spall existed and materialised, but not, on the evidence, as the result of what the defendant then did, or failed to do. It was Mr Downes who took himself into danger in a way in which the defendant cannot have foreseen or taken further steps to guard against. It was obliged by the CMR Act to leave him in control of the actual work performed underground. The evidence showed that had he not gone to the side of the machine under unsupported roof and within proximity of the ribs, contrary to the defendant's system of work and the obligations imposed upon him by the CMR Act, he would have remained safe.

180 It follows that it must be concluded that the charges were not proven beyond reasonable doubt. They must be dismissed.

181 It is unnecessary to consider the defences in the circumstances, although I note for completeness, that I would have found them made out, had it been necessary to turn to them, for reasons which appear clear from what I have earlier dealt with.

Orders

182 For all of these reasons, I order that the charges be dismissed.

183 The usual order as to costs would be that the prosecution bear the defendant's costs, as agreed or assessed in accordance with the Court's Rules. In the absence of agreement the parties have leave to have the matter restored to the list. That leave should be exercised within 28 days.

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LAST UPDATED: 16/12/2003