Robert William Regan v Muswellbrook Crane Services Pty Ltd [2007] NSWIRComm 13 (6 February 2007)

Last Updated: 20 June 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Robert William Regan v Muswellbrook Crane Services Pty Ltd [2007] NSWIRComm 13
This decision has been amended. Please see the end of the judgment for a list of the amendments.


FILE NUMBER(S): IRC 5850

HEARING DATE(S): 12/12/2006

DATE OF JUDGMENT: 6 February 2007
PARTIES:
PROSECUTOR:
Robert William Regan

DEFENDANT:
Muswellbrook Crane Service Pty Ltd

CORAM: Haylen J


CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - specialist crane operator providing crew for heavy lift at mine site - considerable control of safety exercised by mine operator over contractors - failure of crane operator to provide and maintain proper risk assessment for each lift - use of generic risk assessment inadequate for specific tasks - failure to provide information, instruction and training regarding lifts - failure to provide adequate or appropriate supervision of crane crew - failure to comply with and ensure adherence to good rigging practice and standards - serious breach of the Act established - general and specific deterrence considered - factors present reducing level of specific deterrence - extensive system of safety found to be defective - significant remedial steps quickly taken to address risks exposed by accident - early plea - good safety record over lengthy period in dangerous industry - contrition and co-operation with Authority mitigate penalty - co-extensive duty with mining operator - principle of consistency applied - little to distinguish two defendants as to culpability - penalty imposed

LEGAL REPRESENTATIVES

PROSECUTOR:
Mr M Cahill of counsel
SOLICITORS:
Crown Solicitor

DEFENDANT:
Mr M J Joseph SC with Mr D Stanton of counsel
SOLICITORS:
Halletts Solicitors




CASES CITED: Robert William Regan v Anglo Coal (Kayuga Management) Pty Ltd [2007] NSWIRComm 12

LEGISLATION CITED:



JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Haylen J

6 February 2007

Matter No IRC 5850 of 2005
ROBERT WILLIAM REGAN v MUSWELLBROOK CRANE SERVICES PTY LTD.
Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT
[2007] NSWIRComm 13

1 Muswellbrook Crane Services Pty Ltd ("MCS") provides a specialist service in the Hunter area, in particular servicing the local mining industry. On 20 November 2003, at the Kayuga Mine, MCS was engaged in lifting underground mining trailers from a road transport vehicle using a Franna mobile crane. Two underground trailers were to be transported to the mine, lifted from the transport vehicle and placed at a specified location within the Kayuga Mine. As part of this engagement, MCS supplied the Franna crane and crew. During the course of this lifting operation, Jamie Sullivan employed by the company as a dogman, was fatally injured when the trailer fell to the ground during the lifting operation.

2 In November 2005, Robert William Regan was the Director, Mine Safety Operations, Chief Inspector of Mines and Chief Inspector of Coal Mines of the New South Wales Department of Primary Industries and an Inspector appointed under the Occupational Health and Safety Act 2000. Mr Regan commenced proceedings against MCS alleging a breach of s 8(1) of the Occupational Health and Safety Act. After some discussion between the prosecutor and the defendant, a plea of guilty was entered to that charge. The charge was relevantly particularised as follows:

...

(e) at all material times the defendant was engaged to deliver two "underground trailers" to the Kayuga Mine;

(f) the defendant failed to provide and/or maintain a safe system of work with respect to the conduct of lifts to be performed using a mobile Franna Crane, including, but not limited to the 18 tonne Franna Crane Model No AT-18 bearing registration number 039-FNK;
(g) the defendant failed to provide and/or maintain any proper system with respect to the assessment of risks associated with the conduct of lifts to be performed with its mobile Franna Crane, including, but not limited to the 18 tonne Franna Crane Model No AT-18 bearing registration number 039-FNK;
(h) the defendant failed to provide such information, instruction and training as was necessary to ensure the health and safety at work of its employees in the conduct of lifts to be performed with its mobile Franna Crane, including, but not limited to the 18 tonne Franna Crane Model No AT-18 bearing registration number 039-FNK:
(i) the defendant failed to provide such supervision as was necessary to ensure the health and safety at work of its employees in the conduct of lifts to be performed with its mobile Franna Crane, including, but not limited to the 18 tonne Franna Crane Model No AT-18 bearing registration number 039-FNK;
(j) the defendant failed to ensure that adequate supervision was provided to its employees by Anglo Coal (Kayuga Management) Pty Ltd ("Kayuga Management") in the absence of the provision by the defendant of its own supervision for its employees carrying out lifts at the Kayuga Mine.

It was alleged that, as a result of these failures, Jamie Sullivan was placed at risk of injury.

3 Similarly particularised breaches were also alleged against Kayuga Management under s 8(2) of the Act. The defendant in those proceedings also entered a plea of guilty and the two matters were treated as related proceedings. The sentencing hearing in relation to Kayuga Management was immediately followed by the sentencing hearing concerning MCS. The decision in relation to the mining company is reported as Robert William Regan v Anglo Coal (Kayuga Management) Pty Ltd [2007] NSWIRComm 12.

4 The evidence for the prosecutor consisted of a Statement of Agreed Facts, a number of photographs, a plan of the site, an expert's report prepared by Douglas Haynes, extracts from a handbook on rigging, extracts from a website dealing with Crosby Hoist Hooks, Part 1 of Australian Standards AS2550 1-2002 dealing with cranes, hoists and winches - safe use, and two guides for dogging being the 1997 and 2003 editions. For the defendant an affidavit was read of Kerry Newman the occupational health and safety officer for the defendant and an affidavit of Ellen Hallet a director of the defendant. A statement provided to the WorkCover Authority by Mr Newman in February 2004 together with copies of documents referred to during the course of that statement were also tendered by the defendant to complete the record. In a separate bundle of documents there were extracts from the Coal Mines Regulation Act 1982 and Regulations, the defendant's occupational health and safety expenditure for the financial years ending 2004, 2005 and 2006 and the defendant's training plan for the period July - December 2005. Although not tendered, the defendant produced in Court five large folders containing the defendant's occupational health and safety manual. A copy of the company's hazard awareness - risk ranking document was tendered. A DVD was shown dealing with a re-enactment of the lift that was undertaken on the day of the accident and the attempts made to shift the load off the hook.

5 To assist in a proper understanding of the evidence and submissions on sentence, it is convenient to reproduce the Agreed Statement of Facts as follows:

1. A Joint Venture comprising Marubeni Thermal Coal Pty Ltd, Anglo Coal (Dartbrook) Pty Ltd and SsangYong Resources Pty Ltd ("the Joint Venture") held Coal Mining and Exploration Leases comprising the collieries known as the "Dartbrook Mine" and the "Kayuga Mine" near Muswellbrook in the state of New South Wales ("the Joint Venture area").
2. At all material times Anglo Coal (Kayuga Management) Pty Limited (ABN 84 076 106 986) ("'AC(KM)") and Anglo Coal (Dartbrook Management) Pty Limited ("AC(DM)") were wholly owned subsidiaries within the Anglo Coal Holdings Australia Ltd (ABN 52 079 017 940) ("ACHA") group of companies.
3. At all material times AC (DM) was contracted by the Joint Venturers to manage, control and operate coal exploration, coal mining and related activities within the Joint Venture area, including the control, management and operation of the Dartbrook Mine and the Kayuga Mine.
4. At all material times Kayuga Mine was a coal mine for the purposes of the Coal Mines Regulation Act 1982.
5. At all material times AC (KM) controlled and operated the Kayuga Mine under a Deed of Delegation from AC (DM).
6. At all material times Anglo Coal Australia Pty Ltd (ABN. 93 076 059 679), a wholly owned subsidiary of ACHA, employed Daniel Clifford ("Clifford").
7. At all material times Clifford was appointed as Mine Manager of the Kayuga Mine pursuant to s.36(2) of the Coal Mines Regulation Act 1982.
8. At all material times, David Clark ("Clark") was employed by TeroTechnology Services Pty Limited (ABN 30 064 132 449) ("TeroTechnology').
9. At all material times, TeroTechnology was contracted by AC (KM) as its Mechanical Engineer in Charge for the "Kayuga Mine Project" and on or about 20 November 2003, Clark was the Acting Project Manager for the Kayuga Mine Project.
10. At all material times, AC (KM) contracted Roche Mining Pty Ltd (ABN 49 004 142 223) ("Roche") to perform underground development work at the Kayuga Mine.
11. At all material. times, Muswellbrook Crane Services Pty Ltd (ABN 99 001 037 387) ("MCS") provided cranes, crane crews and related services on contract in the Hunter Valley region of the State of New South Wales.
12. At all material times, MCS was an "AC(DM) preferred contractor", with respect to the provision of cranes, crane crews and related services, pursuant to the AC(DM) Safety Health and Environment Management system ("the AC(DM) SHE management system').
13. From time-to-time, MCS was contracted by AC (KM) to provide cranes, crane crews and related services at the Kayuga Mine. AC (KM) had failed to completely adopt as they had intended the AC (DM) SHE management system as its own, ("the AC (KM)'s SHE management system"). AC (KM) failed to give effect to SHE management system with respect to the management of contractors.
14. At all material times, Gary Meyer ("GM") was employed as manager of MCS.
15. At all material times, GM was responsible for the day to day management of MCS's implementation of the company's occupational health and safety management system. GM reported to and liaised with the Directors of MCS on matters of occupational health and safety, but GM was authorised to undertake the development and implementation of occupational health and safety policy and practice. Whilst MCS employed an occupational health and safety officer, GM provided management direction with respect to policy development and implementation. GM also played an active role in the operation of the company's occupational health and safety policy and management systems by undertaking reviews/audits of the skills and competencies of the company's employees both in the company's yard at Muswellbrook and, from time to time on site.
16. At all material times, MCS employed Richard Matthews ("Matthews") as a crane driver. Matthews held a certificate of competency as a crane driver and was authorised to operate the mobile Franna crane ("the Franna crane") to which he was assigned by MCS on 20 November 2003. Matthews was an experienced and qualified crane driver.
17. At all material times, MCS employed Jamie Sullivan ("Sullivan") as a dogman. Sullivan held a certificate of competency and was authorized to "dog" with Matthews in the operation of the Franna crane to which they were assigned by MCS on 20 November 2003. Sullivan was an experienced and qualified dogman.
18. At all material times, MCS also employed David Atwood ("Atwood") as a truck driver. On 20 November 2003, Atwood was also assigned to the task of delivering to and removing plant and equipment from the Dartbrook Mine. Matthews and Sullivan were inducted to work at the Dartbrook Mine pursuant to the AC(DM) SHE management system and at the Kayuga Mine pursuant to AC (KM) SHE management system.

Background to the Subject Incident

19. Some time prior to 20 November 2003, David Sykes, the then project manager at the Kayuga Mine, agreed to loan Roche two (2) "underground trailers" for its use in underground development work at the Kayuga Mine.
20. The two "underground trailers" had been constructed for the joint venturers to transport fans underground at the Dartbrook Mine. The "underground trailers" weighed approximately 1.5 tonnes and were approximately 6310mm long, 1500mm wide (2000mm wide including the wheels) and 1000mm high. Arrangements were made between AC (KM) and AC (DM) for the loan of the trailers to Roche.
21. As the two "underground trailers" were being stored at MCS's yard in Muswellbrook, on or about 20 November 2003 MCS was contracted to deliver the two "underground trailers" to the Kayuga Mine. MCS was also retained to supply a crane and crew, consisting of a crane driver and a dogman, to unload the two "underground trailers" on their delivery to the Kayuga Mine.
22. At the same time MCS had been retained to provide lifting and transportation services at the Dartbrook Mine by AC (DM).
23. At about lam on 20 November 2003, after passing a compulsory pre-work breath test, Matthews, Sullivan and Atwood, together with another crane and crew, were assigned to work at the Dartbrook Mine to lift and transport mining plant and equipment. Matthews and Sullivan were to use the Franna crane to which they were assigned by MCS to assist MCS's other crane crew.
24. After having been assigned to work at the Dartbrook Mine on 20 November 2003, Matthews and Sullivan drove the Franna crane out to the Dartbrook Mine. This crane was allocated to Matthews permanently and Matthews had driven this crane on the four previous days of the job.
25. On arriving at the Dartbrook Mine, Matthews and Sullivan met up with MCS's other crane crew who they were to assist in the loading of equipment for removal from the Dartbrook Mine and in the unloading of equipment that was being delivered to that mine.
26. Prior to commencing work at the Dartbrook Mine on 20 November 2003, Matthews and Sullivan completed a two page risk assessment worksheet. Once they had completed the risk assessment worksheet, Matthews, Sullivan and the other crane crew all signed off on the document.
27. The risk assessment worksheet completed by Matthews was a general pro-forma risk assessment document..
28. Further, prior to commencing work at the Dartbrook Mine on 20 November 2003, Matthews was also required by MCS to perform an inspection of the Franna crane and to complete an inspection logbook in accordance with the "Section 103 scheme" in operation at the mine. Matthews did not complete the logbook prior to work commencing at the Dartbrook site on that day.
29. Matthews did not complete the logbook prior to work commencing at the Dartbrook site on that day. This was contrary to MCS's operations management policy in place at that time.

The Subject Incident

30. During the course of the morning of 20 November 2003, Atwood was allocated to deliver the two "underground trailers" from MCS's yard in Muswellbrook to the Kayuga Mine.
31. The trailers were stored at the depot of MCS. These were loaded onto a truck in the yard at the depot by a different crane and crew and transferred to the Kayuga mine site. These were loaded without incident.
32. In the course of that morning, Matthews was directed to drive the Franna crane accompanied by Sullivan (the dogman), to the Kayuga Mine for the purpose of unloading the two "underground trailers".
33. On their arrival at the Kayuga Mine, Matthews, Sullivan and Atwood all attended at the "Kayuga Offices" where, in accordance with AC (KM)'s SHE management plan, they completed the Visitor's Contractors Sign In book.
34. Whilst at the "Kayuga Offices" Matthews spoke with Clark and David Clarence of Roche. Clark instructed Matthews to place the two "underground trailers" on the Kayuga Mine 'hardstand'.
35. At the hardstand, Atwood parked the semi trailer, whilst Matthews positioned the Franna crane adjacent to the semi trailer. The chains were then placed on the crane hook and the crane was moved into position so that the "underground trailer" closest to the cabin of the semi trailer could be. "slung".
36. Matthews and Sullivan did not undertake a written risk assessment of the subject lift.
37. The crane Matthews was operating in the course of the subject incident was an 18 tonne Franna model AT-18 (bearing registration number 039-FNK). This Franna crane was fitted with a Crosby "swivel type" crane hook. The casting of the Crosby crane hook bore two marks at 45 degrees from the vertical indicating the area within which "the slings" or "links" should remain.
38. The lifting chains selected by Matthews and Sullivan for use in unloading the two "underground trailers" consisted of two sets of "two-leg chains". Each set of chains consisted of an oblong link to which was attached two lengths (or legs) of chain. The overall length of each of the chain sets was approximately 4.6 meters. The end of each "leg" was fitted with a Clevis type safety hook and each leg of each chain was also fitted with shortening hooks.
39. The rating of the Crosby hook and the chains were all appropriate for the proposed lift.
40. Sullivan connected the oblong link in each of the two sets of lifting chains directly to the Crosby hook by placing the oblong links directly onto the hook.
41. Further, the lifting chains had been shortened for a previous lift and had been returned to the Franna crane's equipment box without the shorteners being released. Sullivan did not release the shorteners before proceeding to sling the subject load. In the result, each leg of the sling was shortened by approximately 600mm which resulted in a total shortening across each set of two legs of the sling of 1200mni.
42. Once the boom arm of the Franna crane had been placed into position over the "underground trailer" closest to the cabin of the semi trailer, Sullivan climbed up onto the semi trailer and connected each of the four legs of the lifting chains to the "underground trailer".
43. Each of the underground trailers was fitted with four lugs that had been welded to the top rail at either end of each trailer. These lugs had been used to fit fans to the underground trailers when they were in use at the Dartbrook Mine. One of the lugs at the drawbar end of each trailer was offset.
44. Sullivan proceeded to sling the first trailer by connecting the self locking Clevis hooks at the end of each of the four legs of the lifting chains to each one of the lugs.
45. Once Sullivan had completed slinging the first "underground trailer", Matthews raised that load.
46. As soon as the "underground trailer" had been lifted clear of the deck of the semi trailer, both Matthews and Atwood saw that the load was hanging at an angle, drawbar down and that one of the legs of the chains was slack.
47. Also, Matthews could see the chains were widely separated on the crane hook. Matthews and Sullivan proceeded with the lift without re-slinging the "underground trailer".
48. Matthews reversed the Franna crane until the "underground trailer" was clear of the semi trailer. Then, while still reversing, Matthews began to lower the load towards the ground.
49. At some point during the course of the lift, Matthews saw Sullivan approach the "underground trailer". Matthews also saw Sullivan attempt to make contact with the load with his hands. The load was not fitted with a tagline which Sullivan could otherwise have used to control the load whilst remaining at a distance from the load. Both Sullivan and Matthews were familiar with the use of tag lines.
50. At about 1.00pm, whilst Matthews was continuing to operate the crane, he heard a loud noise and stopped the crane. Matthews then saw that the load had "collapsed".
51. Matthews got out of the cabin of the Franna crane. Matthews then saw that Sullivan was trapped under. the "underground trailer". Matthews also stated, when interviewed after the event, that he saw "chains" on the ground at this time.
52. Atwood, who had been preparing the second "underground trailer" for unloading from the rear of the semi trailer, also saw Sullivan trapped under the first "underground trailer".
53. Atwood jumped down off the back of the semi trailer and approached the "underground trailer". Atwood saw that the "underground trailer" was over Sullivan's torso.
54. When Atwood approached the trailer he saw that one of the sets of chains had disengaged from the hook and then rearranged the remaining lifting chains so that Matthews could use the Franna crane to lift the "underground trailer" off Sullivan.
55. After Atwood had rearranged the chains on the load, Matthews lifted the trailer clear of Sullivan by raising and then retracting the boom arm of the Franna crane.
56. Once the load was clear of Sullivan, Matthews lowered the "underground trailer" to the ground.
57. Matthews then alighted from the Franna crane and disconnected the remaining chains from the crane hook. Matthews then drove the crane up to the Kayuga Mine offices to get help. Once Matthews had reported the incident at the Kayuga Mine offices, he drove the Franna crane back down to the Kayuga Mine hardstand. At some stage, Matthews disconnected all of the Clevis hooks from the "underground trailer". It also appears that the shortening hooks on each leg of the lifting chains were released as well.
58. Sullivan died at the scene. An autopsy found that Sullivan had suffered injuries consistent with a single, very heavy impact to the left side of the body.
59. After the incident the Franna crane, the Crosby hook, the lifting chains and the "underground trailer" were examined for any "mechanical" failure that may have contributed to the subject incident. This post-accident examination of the lifting equipment did not disclose the existence of any faults in the lifting equipment that may have contributed to or caused the subject load to "collapse" in the manner described.
60. The point at which the load "collapsed" has not been identified.
61. Sullivan should have maintained a safe distance from the load and should not have approached the load to attempt to "walk" and control the load "hands on". A load should only be approached and controlled hands on, once the crane has come to a halt and the load has been lowered to close to the ground.
62. Those facts referred to in paragraph 61 above relate to rigging and lifting practices. They involve basic lifting and rigging practices that should be identified and addressed prior to any lift being performed. These safety procedures form part of the basic training for all dogman, riggers and crane operators and are covered in the WorkCover Certificates of Competency. Both Matthews and Sullivan held such certificates.
63. After the incident MCS introduced a revised safe work method statement and a revised risk assessment document designed specifically for use in combination with its Franna cranes and undertook toolbox talks. Those documents instructed the MCS's crane drivers and dogmen to adopt the following rigging and craning practices when operating MCS's Franna cranes:

· ·Should not return lifting chains to the crane's chain box and/or to storage in a shortened condition;
· Should not use lifting chains in a shortened condition unless absolutely necessary;
· A direction that dogman and crane drivers shall ensure the use of bow shackles to inter-connect multiple rings/sets of lifting chains to a Franna crane hook, regardless of the included angles of the chain sets.;
· ·A requirement for even load distribution during all lifts;
· Dogmen shall not walk "with hands on any load,
· A revised procedure for the use of Tag Lines
· A toolbox talk in respect to the use of taglines..

64. MCS also introduced a range of similarly revised safety documents across the full range of its lifting plant as part of a broader review and reorganization of its occupational health and safety management system. The changes introduced included the introduction of skills or competency based training for crane drivers and dogman, increased onsite supervision and routine safety auditing, onsite, on crane crews.
65. Prior to and at the time of the subject incident MCS relied upon the following-

· AC (KM) to provide onsite supervision of MCS's employees providing lifting services at the Kayuga Mine.
· Its qualified employees to observe basic safe practices whilst performing their work
· Assessment of specific jobs by trained managers to determine the complexity of the lift and whether a lift required the provision of a supervisor (who were readily available).
· Employees to follow an instruction given that any complexities arising whilst performing their work should be immediately reported to the depot to permit a supervisor to give further instruction and attend if necessary.

63. Prior to and at the time of the subject incident AC (KM) controlled access to the Kayuga Mine and purported to maintain control of and to supervise contractors working in and about the Kayuga Mine, including employees of MCS who were, from time-to-time, present at the Kayuga Mine to provide lifting and related services.
64. Further, AC (KM) had a duty under the Coal Mines regulation Act and the Coal Mines (General) Regulation to regularly assess and identify risks in order to eliminate, control or manage the risk by designing safe work systems.
65. After the event, AC (KM) banned cranes from the site until such time as AC (KM) and AC (DM) had conducted an investigation of the subject incident, including a review of relevant aspects of the safety and environmental management systems in place at the mines (the AC (DM) and AC (KM)'s Safety Health and Environmental Management Plans) and the putting in place of changes to that system designed to avoid the recurrence of such an incident.
66. Following its investigation and review, AC (KM) introduced a new procedure for crane operations that require the lifting company to carry out a detailed documented review of proposed crane operation prior to any work being performed at the Kayuga Mine. Under the new work procedure, the relevant person is charged with an obligation to review:

· each lifting task to be undertaken;
· the type of plant to be used; and
· the technical documents used to determine the lift method.

67. The relevant AC (KM) job organizer is charged with an obligation to review the Mobile Crane pre-use check list to ensure that:

· the task to be undertaken has been the subject of an onsite evaluation by appropriately qualified staff of MCS (or any other contractor providing lifting services);
· an appropriate work method is adopted and where appropriate, that additional expert review and advice has been obtained.

68. The relevant AC (KM) job organiser is also charged with the responsibility of reviewing the form that records the details of the following documentation:

· the operational and inspection papers associated with the cranes to be used in the subject operation (including Section 103 log books and contractor risk assessment documents);
· the paperwork associated with certification of the lifting chains, slings and lifting attachments to be used in the subject operation; and
· Certificates of competency of both crane drivers and dogman assigned to the lifting task.

69. By contrast, prior to and at the time of the subject incident, AC (KM) did not have in place any such systematic review 'of proposed lifting tasks; nor did it provide any supervision with respect to the subject lift.

6 An expert's report was supplied by Mr Haynes a retired WorkCover Inspector who had attained the position of Assistant Principal Inspector. Since retirement he had been frequently engaged in a consultancy capacity for two State Governments in the field of mobile and tower crane operations. Mr Haynes' report proceeded on the basis that the trailer weighed approximately 1.5 tonnes, was 6 metres long, and approximately 1.5 metres wide across the frame and 2 metres wide across the wheels. It was accepted that the condition of the lifting equipment did not contribute to the accident nor was there any failure of the equipment during the accident apart from the breaking of the crane hook safety latch which was subject to unintended forces. On lifting, the trailer was not level or balanced and hung down at the drawbar end and to one side. No tag line was used during the moving of the trailer. The ground surface was reasonable and probably similar to the ground inspected by Mr Haynes sometime later, but the possibility of the crane running over an object could not be discounted. The method of slinging the trailer was such as to allow the rear of the trailer to crash to the ground. This had been interpreted to mean that the hook faced the rear and the oblong link closest to the open sides of the hook slid off the bill of the hook. There was a wide angle between the chain sets although the angle was not known with certainty. The trailer on the crane received sufficient impetus from some source so that it swung up high enough to allow the oblong hook to lose friction and slide up the bill of the hook and smash through the hook's safety latch. The crane driver said in a statement that the trailer may have struck something while being moved, such as the ground or the bin nearest where the trailer landed.

7 Mr Haynes was asked to state what steps prudent crane practice required to deal with any dangers presented by the task of removing the trailer from the road semi-trailer and placing it approximately in the location of its intended storage. Mr Haynes said that the Franna mobile crane was "the perfect choice" for this task. Mr Mathews was qualified to operate the crane and Jamie Sullivan was qualified to operate a slewing mobile crane up to 60 tonne together with forklift and truck and dogging. It was Mr Haynes' view that both operators had the necessary qualifications to carry out the task of removing the mine plant trailer and placing it into position at the mine site.

8 The work required a pre-lift check and a risk assessment because of the design of the trailer "with its asymmetrical lifting lugs and overhanging drawbar". The lugs did not appear to be specifically designed as lifting lugs: the holes in the lugs were not generous enough to fully accommodate the latch lock hooks of the selected chain sling set. Mr Haynes dealt with the slinging of the load commencing with taking the tackle from the compartment of the crane in which the chains and rigging were stored. During the lifting of the gear at this stage any chain shorteners were to be detached from the lifting chain so that each link would be free to be at its maximum length. The slinging of the load should have been addressed at a toolbox talk between the parties involved, using the two sets of two-leg 8mm chains and the four lugs. One of the lugs needed to be adjusted to accommodate the asymmetrical lifting lug. This was not done on the day of the accident. The crane hook should then have been raised to try for even lug tension with the crane driving or slewing into position and the chain leg shorteners adjusted. A trial lift should have been taken, carefully raising the load just clear of the truck trailer tray. Prior to lifting, the dogman should have attached a suitable minimum 16mm sized tag line to one corner. If the slinging angle exceeded 90 degrees, or beyond the recommendations of the Crosby hook angle of 45 degrees from the vertical, the load prior to lifting clear of the trailer would need to have had a bow shackle interposed between the hook and the oblong links. Mr Haynes said that, in view of the lifting or holding lug deficiencies, he would have recommended slinging the trailer exactly as was done in a photograph shown to him, that is, by way of a four back hook chain sling set reeved around the trailer upper longitudinals. The front chain set was to use shorteners to accommodate the extra drawbar weight and to ensure level lifting.

9 In accordance with usual practice, the driver was regarded as being in charge of all crane operations and Mr Haynes believed this responsibility was made considerably easier when operating a Franna crane because of the load being in full view and directly in front of the operator. If a load was not level at lift or the lift gear did not take the weight evenly, the load could be put down, the slinging adjusted and lifted slightly to check the load distribution and security. In relation to instruction, training and supervision, this aspect of crane operation was the responsibility of the employer. The degree of supervision was dependent on the difficulty of each operation. In Mr Haynes' view, the particular task taking place on the day of the accident did not require a full-time supervisor on site but instruction and training were clearly needed in the particular instance. Mr Haynes gave the opinion that: "While minor modifications just to slinging the load were required it seems incomprehensible that this accident occurred. Regular instruction and training must be employed to prevent any such repetition". It was noted that the driver appeared to be widely experienced and had driven the particular crane for some years. He held certification for hydraulic mobile cranes up to 80 tonnes capacity and was given good reports by his supervisor, Gary Meyer of MCS. Mr Haynes regarded Mr Sullivan was relatively inexperienced having only been assessed as a dogman in 1999. His national Certificate of Competency included mobile cranes and forklift trucks and had only been issued three months before this accident. According to the supervisor, Mr Meyer, Mr Sullivan had accompanied other crane crews as a secondary dogman learning from others in the crew - this was designed to give him experience and provide training in a number of lift situations.

10 In relation to the Australian Standard for Cranes, Hoists and Winches it was noted that para 1.9 dealing with risk assessment stated:

A risk assessment shall be undertaken by a competent person before carrying out the operation required to be undertaken by the crane. The assessment shall be in writing and shall take into account the following:
(a) the task to be carried out;
(b) the range of methods by which the task could be done;

(c) the type of crane that would be required or that can be used;

(d) the hazards involved and the associated risks;

(e) the actual method and the other requisite plant and material;

(f) emergency and rescue procedures.

NOTE: The risk assessment should address the proposed operation rather than each individual lift. As a result of the risk assessment, the competent person shall formulate a safe work method procedure, which shall be monitored for ongoing effectiveness and modified whenever it is found to be deficient, when the task changes or when the associated risk changes.

11 In Clause 6.11, the Australian Standard, dealing with "Control of load", provided:

Where a load is hoisted under the direction of a competent person other than the crane operator, that person shall direct the crane operator from the time the load is hoisted until it is placed in position. The competent person shall ensure that the load clears all obstructions and, where necessary, shall guide the load by an appropriate means, eg tag line ...
Before signalling the crane operator to raise a load, the competent person assisting the operator shall ensure that:
(a) the slings are correctly applied to the load and to the crane hook;
(b) no part of the load is loose;
(c) the load is free and ready for hoisting;
(d) when hoisted, the load will not foul any object;

(e) when hoisted, the load will not constitute a hazard to any personnel; and

(f) the load placement area is ready to receive the load.

Clause 16.12, Tag Lines:

When used, hand or tag lines shall be at least 16mm in diameter and be made of non-conductive materials. Tag lines shall be maintained clean and dry and shall be assessed before use. Lifting gear should not be used as tag lines. Tag Lines shall not be attached to the lifting gear.

12 The guide for dogging in dealing with "Multi-legged slings" stated:

The recommended maximum angle between the two legs of a sling is 90 degrees.
The recommended maximum angle between the vertical and any leg of a sling is 45 degrees. When slinging a rigid object with a multi-legged sling it must be assumed that only two of the sling legs are taking the load. Additional legs do not increase the SWL of the sling assembly.
... be careful when lifting irregular shaped objects - it is possible that only one leg of the sling is taking the whole load. The larger the angle from the vertical made by slings on a hook the more likely the slings eye is to slip off the point of the bill. In this case put the eyes into a 'bow' shackle large enough so that they do not jam. Make sure that the shackle pin is resting on the hook. ... always stand clear of loads being lifted or handled. Make sure that the slewing cranes are clear of all obstacles, loads and people. Bystanders can become jammed between cab, counterweight and chassis.

13 Mr Newman had a number of employment experiences, including commencing employment with MCS in 1996 in an administrative and payroll position. He worked in this position for two years before taking up other employment and returned as the occupational health and safety officer of MCS in 2001. The previous occupational health and safety officer was Peter Norton. In 2002, Mr Newman completed an occupational health and safety consultation course accredited by WorkCover and in June 2003 he completed a similar course in occupational health and safety risk management for supervisors and managers. In 2004, he completed Certificate IV in workplace safety at Muswellbrook TAFE.

14 From 2001, MCS had a management policy and procedures manual covering a variety of matters including occupational health and safety policy and procedures, a drug and alcohol policy statement, fitness for work policy and a return to work policy. Mr Newman's position required him to organise the occupational health and safety matters for the company's operations. When Mr Newman commenced in this position, there were up to 20 mines in the Hunter Valley who were customers of MCS and each mine had a particular work system with which the company had to comply. This involved company employees who worked on the mine site attending annual inductions conducted by the mine operator. In 2001, there were approximately 50 employees of the company and it was a considerable task to ensure that employees were properly inducted into the various work sites and that the company's occupational health and safety systems were appropriate for the work being performed. Mr Newman provided company inductions for all new employees and contractors on the MCS site. He said that each of the company's employees received occupational health and safety training and induction up to 20 times each year in order to maintain their entry rights to the various mines and other sites upon which they worked.

15 Soon after starting as the occupational health and safety officer of the defendant. Mr Newman reviewed the company's safety systems, being aware that there had been a number of changes introduced by the Occupational Health and Safety Act 2000. After reviewing the company's policy, he formed the opinion that the majority of policies required re-writing and spoke to the General Manager Mr Meyer who agreed that Mr Newman should embark upon a review of all policies to ensure that they provided a proper and safer work method. At the time of the accident, several policies and procedures were in the process of review and were at a "draft stage": they included the employee safety handbook, the OHSMS plan, training policy, lifting equipment, risk management, vehicles and mobile equipment, emergency preparedness response and code of conduct. Because of his experience and familiarity in the field, Mr Newman first paid attention to the drug and alcohol policy which resulted in all the company's employees being breath tested prior to the start of every shift since 2002, and being subjected to random urine testing for other drugs on a regular basis. Employees who did not meet the requirements of the fitness for work policy have been managed with counselling and education: a continuing failure to meet requirements resulted in the loss of employment.

16 In late 2002, Mr Newman formed the company's occupational health and safety committee. The committee was constituted by four people including Mr Newman and representatives from the workshop and yard, a truck driver and crane operator/dogman. All members of the committee had undertaken the WorkCover accredited occupational health and safety consultation training course. At the first meeting of the committee, the requirement of a risk assessment for each job was raised and that such an assessment needed to be compulsory for all jobs. Following the meeting, Mr Newman checked with a company that conducted the majority of inductions for mines in the Hunter Valley to ensure that the induction of the company's employees included an instruction that a risk assessment be taken for each job. In August 2003, the committee agreed to continue to develop the company's risk assessments. The risk assessments at that time were compiled by the employees and identified the majority of hazards for cranes, trucks and specific items of plant. The crane drivers had also been working in groups to develop risk assessments.

17 Once Mr Newman had embarked upon the review of company policies, it became clear to him that he required assistance. He spoke with Mr Meyer when it was decided that an occupational health and safety consultant would be engaged to assist Mr Newman: Paul King was contracted to assist in reviewing the policies of the company in July 2003. Prior to this time, mine operator customers of the company had carried out audits of the company's occupational health and safety management system. The company's system was found to be compliant.

18 Mr Newman became aware of the requirement for appropriate risk assessments for the operation of cranes. It was agreed that the best way to develop a risk assessment form was to consult the crane drivers and dogmen who were experienced in performing the work. Up until that time, a number of risk assessment forms were in circulation for use by the company's workers based on versions from various mine sites upon which they worked. There was no consistency between these forms. It seemed that particular operators preferred one form to another, as did individual mine sites and this appeared to be due to the fact that mine sites did not use a generic risk assessment matrix. Many of the company's drivers had been employed for many years (some for 20 years or more) and had grown accustomed to using a particular risk assessment matrix. Mr Newman was of the view that the system should be centralised to minimise the risk of confusion and therefore sought information from the crane operators as to what matters should be included in the risk assessment. This process of consultation and development with the operators was continuing at the time of the accident.

19 The steps taken after the accident were then dealt with by Mr Newman. Together with Mr Meyer and a supervisor, Mr Newman rewrote the risk assessment worksheets for each particular type of plant used by the company. Instructions were given to every employee and a MCS plant specific risk assessment worksheet needed to be completed for each job and signed by all employees working on the job. Mr Newman undertook regular audits in respect of completion of the risk assessment worksheets. Because of the work involved in auditing, inspections and processes in relation to occupational health and safety, the company had since engaged two more occupational health and safety co-ordinators, the first being employed in November 2004 and the latter in February 2006.

20 The new risk assessment documents were implemented through a toolbox talk and explanation sessions held on 15 December 2003 when all employees were instructed on the need to and the manner of completing the risk assessment. Since then, the risk assessment worksheet has been modified from time-to-time to reflect changes in work practices or systems. Regular toolbox talks were conducted and Mr Newman was to be notified of any incident that occurred in the workplace: following such notification, he reviews the risk assessment worksheet to see if modifications are required. If any modifications are made through the occupational health and safety committee, then the employees are then instructed regarding the new risk that has been identified, together with the relevant control measures.

21 Mr Newman, after the incident, arranged for all employees to undergo a risk management refresher course including identification of hazards, assessments of risk and the elimination and control of risks. This was completed in late July 2004. He arranged for satchels to be prepared and provided to all vehicles used by the company. Those satchels contained a lift equipment register, risk assessment relevant to the vehicle, a risk ranking matrix, a monthly crane inspection logbook, sling and chain load charts, CCI annual crane report, 103 daily inspection books, CICA Crane Safety manual, Dartbrook Mine Mobile Crane checklist and an RTA load restraint guide.

22 A number of other changes were introduced following the incident relating to the work of crane operators:

(a) new "chafers" were provided for all cranes, being a protective packing for sharp edges reducing the risk of wear to a chain;
(b) instruction was provided to crane operators to ensure dogmen used chafers to protect the chains allocated to them;
(c) there was a modification to the 103 daily plant inspection certificate to include further checks of the chains requiring each numbered chain set to be inspected individually and signed off prior to use;
(d) an instruction was given immediately to all employees to use only one oblong link or shackle on a hook at any one time. The instruction was accompanied by coloured photographs indicating that there was now to be only one point of contact of a load upon a hook. Further instruction was provided that the angle of rigging on the hook should not exceed 90 degrees;
(e) an instruction was given that tag lines should be used if possible on all lifts;
(f) refresher training of all crane drivers and dogmen, constituted by a half day safe lifting course provided by a specialist company in lifting

equipment and safety procedures; and

(g) Mr Newman reviewed the methodology for carrying out checks of the lifting equipment for any faults or breakages that involved correctly recording each inspection as an improvement of the existing system.

23 Immediately following the accident, John Greentree was appointed to implement and audit the occupational health and safety management systems at the company. Mr Greentree had been employed by the company since March 1995 as an assistant allocator and cost clerk. He had since been replaced by two full-time employees. Information regarding the accident was distributed to mining companies and other interested parties through face-to-face meetings and written handouts/presentations. All employees were issued with a personal folder for the storage of company notices and occupational health and safety handouts with each document being individually traceable allowing for a ready audit and verification of information being received by the employee. An occupational health and safety bench was installed in the employees' cribroom containing continued updates of WorkCover and other occupational health and safety material for employees. Training was continued for all managers and supervisors, including two company directors, with a two day WorkCover accredited course in occupational health and safety risk management training for supervisors and managers. The revised occupational health and safety management system process was successfully audited to the WorkCover standard in 2005 and continued to be developed on an ongoing basis.

24 Reference was made to the systems adopted by the defendant in relation to heavy vehicles and the task of complying with legislation and safety requirements associated with the use of such vehicles. The defendant had 39 registered trucks and trailers and 41 Franna cranes. Mr Newman said that the defendant was registered with the National Heavy Vehicle Accreditation Scheme and spoke of the way in which inspection, maintenance and training was undertaken. The drivers were trained in relation to the National Heavy Vehicle Accreditation Scheme and, as part of the scheme, the defendant company undertook a six month audit. The defendant required its drivers to undertake a daily pre-operational vehicle inspection and, if faults were found, a report or repair request was completed by the operator and forwarded to the workshop. Under the audit system, the defendant undertook a monthly audit to ensure that drivers were complying with safety requirements. The defendant became involved in the Scheme to ensure that it was able to properly control daily checks to identify faults and arrange for maintenance and service of trucks and cranes. The defendant aimed to ensure ongoing training of employees and there was an audit and internal review system to ensure that that requirement was met. The details of the Heavy Vehicle system of the defendant was explained and reference made to a custom-made data base applicable to meet the specific requirements of the workshop in maintaining vehicles.

25 The defendant designed the fatigue management policy and all truck drivers were inducted into that policy. In the first half of 2006, the defendant developed journey plans, in relation to all sites that the company attended. The journey plans related to any work completed outside a 500 kms radius from the defendant's Muswellbrook office and dealt with trip schedules and times required to properly load and unload the vehicle, rest periods in order to recover from the effects of fatigue, the effect of fatigue over more than one day and the effect of fatigue on travelling during day or night. As part of ongoing training for all staff, the defendant undertook specific fatigue management training, engaging an expert in heavy vehicle transport to compile the documents for the Heavy Vehicle Accreditation scheme. As part of the defendant's ongoing review of its occupational health and safety system, it had subscribed to and obtained a number of heavy vehicle publications and information from those publications was provided to employees at toolbox talks. Upon employment with the defendant all heavy vehicle drivers were assessed informally by the managing director and a new employee was "partnered" with a current employee for a short time to gain experience in the defendant's procedures. The managing director then received feedback regarding the competency of the new driver and a decision made as to whether the new driver had shown sufficient competency to operate a heavy vehicle unassisted.

26 In oral evidence, Mr Newman said that the risk assessment document used on the day of the accident by Mr Matthews was not the defendant's document but was used by some of its employees. That particular document had been derived from risk assessments undertaken by Coal and Allied and used for many years in the Hunter Valley. It was regarded as a standard risk assessment worksheet and had its own risk ranking matrix. The form had been adopted by the defendant and issued to its employees.

27 The defendant did not always send a supervisor with a crane driver and a rigger. On many occasions, lifts of this nature were unsupervised because they did not involve a multi-crane lift and it was not considered to be either difficult or dangerous. Mr Newman was of the view that there were occasions when the use of a tag line could be dangerous. In relation to the site where the accident occurred, he regarded it as a "messy" site where the rigger could stumble or lose his footing while using the tag line.

28 When Mr Newman returned to the defendant in mid-2001, it was necessary to review the occupational health and safety system. There were method statements and risk assessments available but they were not in a standardised form. Some of the documents were obtained from other mine sites where employees of the defendant worked and where those forms were required. Mr Newman agreed that, under the Australian Standard "Planned Lifts", either multi-crane lifts or particularly dangerous equipment, required a qualified person to develop a working method for that lift. Some of the documents used by employees of the defendant were documents used in preparing for a planned lift. They were in a different form to the document used by Mr Matthews on the day of the accident. The document since produced by the defendant after Mr Newman's review, added matters to be considered were not in the document used by Mr Matthews on the day of the accident (for instance, the use of a shackle with correct weight limits). That was a risk known before the accident and one identified by the Australian Standard to be addressed by the use of a bow shackle. The risk of using multiple rings in lifting and the chance of a load slipping off the hook was also known and addressed by WorkCover documents. Mr Newman accepted that the lift at Kayuga mine on the day, as opposed to the task to be undertaken at Dartbrook, called for a written risk assessment in accordance with the Australian Standard. That was a requirement now made by the defendant.

29 Sue Ellen Hallett was a director of the defendant. She described the defendant as being a family company formed in 1972 with her father as the founding director. Her father remained the managing director of the defendant until January 2000 when Ms Hallet and her brother became directors of the company. In 1972, the company had a staff of four people but by December 2003 that number had increased to 58.

30 The defendant provided crane services to various industries and individuals in the Hunter Valley although a number of coal mine operators regularly used its cranes. Many lifts were performed each day and a great deal of them were considered to be routine in nature and did not require supervision but others could be complex, for instance, involving more than one crane and such work would only be performed in the presence of a supervisor.

31 Within the business, Ms Hallett tended to concentrate on administration and financial aspects having commenced work at the age of 20, while her brother contributed information technology skills to the business. The defendant employed a number of managers and, at the time of the accident, Mr Meyer was the general manager. He had been the general manager of the defendant since 1978 and was responsible for overseeing and liaising with the mangers of various departments including the workshop manager, the occupational health and safety co-ordinator, the office manager, an operations manager and managers who provided daily supervision to the drivers and crane operators. Each manager was given responsibility for overseeing their particular area of operation and Mr Meyer was available to provide advice and assistance to the managers. Supervision, however, was of a limited kind since it was accepted that each manager was competent to manage their respective department. When employed, each manager as a pre-requisite, had to satisfy the defendant that they had the experience in the area in which they were to be appointed. In 2003, the company owned 34 cranes ranging from 8 tonnes to 860 tonnes capacity. Its plant included 20 trucks from 6 tonnes tilt-trays to 200 tonnes gross combination loaders.

32 The review of occupational health and safety systems was explained together with an explanation for Mr Newman's selection for that task and how he was regarded as the person best equipped to conduct a review and implement the required changes. Mr Meyer liaised with Mr Newman regarding occupational health and safety matters and they were both involved in conducting safety audits performed at the defendant's depot and worksites on a regular basis. Ms Hallett described inductions before the accident, the involvement of Mr Newman, the regular training inductions that were conducted and the costs met by the defendant in this regard. In the 12 months prior to the accident, the defendant spent over $200,000 on occupational health and safety issues.

33 Prior to the accident, a decision was taken to change the system of inspection of chains used in the defendant's crane operations. Previously, chains were sent to an external company every 6 months for inspection to ensure their safety. That approach was replaced by daily inspection conducted by crane operators, dogmen and riggers and was designed to improve the safety of the crane operations. By requiring daily inspection of the chains before use, employees were able to become more aware of and diligent of the safety requirements of the equipment they were using.

34 Chains and lifting gear were allocated to individual cranes and each crane was allocated to an individual operator. This approach was to ensure that the operator of the crane took "ownership" over the crane and its equipment and felt responsible for the maintenance of the plant and the safety of the equipment being used. Instructions were given that, each day before any work was undertaken, an inspection of the crane and the lifting equipment was to be carried out by the crane operator, dogmen and riggers and an inspection sheet (known as the 103 document) completed indicating the result of the inspection. Any damaged equipment found during this inspection was quickly notified and remedied, any damaged equipment being removed from use and repaired or replaced. In addition to the inspection document, random checks of the equipment were carried out on an ongoing basis by Mr Meyer and a supervisor of crane operators. Any equipment found not serviceable was removed from use immediately and replaced with new equipment.

35 In July, 2003, Mr Newman commenced a review of all occupational health and safety policies and manuals and a consultant was engaged at that time to assist in that task. Prior to the accident, all employees received instruction that a risk assessment had to be undertaken covering all general lifts to be performed at the sites. Crane drivers also worked in groups to develop risk assessments and employees had been instructed that a risk assessment was required for each particular job they were performing. Ms Hallett referred to the risk assessment document that originated from Coal and Allied Pty Ltd and had been modified by Mr Matthews for use when lifting with a Franna crane.

36 The events of the day of the accident were then dealt with by Ms Hallett. She referred to Mr Matthews as being an extremely experienced crane driver and referred to his training in occupational health and safety. Mr Sullivan had been a qualified dogman from 1999 although, when he started with the defendant, he did not have a ticket to work as a dogman. The defendant arranged for him to receive training by attending a course conducted at Cessnock run by an accredited company. After receiving his ticket, Mr Sullivan received further training from the defendant and was inducted on numerous mining sites.

37 The accident occurred at a mine site under the control of Kayuga Management. The defendant was aware that Kayuga Management would provide supervision of all contractors working on their site. The induction process for a mine site was directed at making contractors familiar with the occupational health and safety issues applying to a specific mine. Part of the induction involved instruction regarding the supervision that would be provided to contractors on site by the operators of the mine. Ms Hallett said she was familiar with the terms of the Coal Mines Regulation Act and the Coal Mines (General) Regulation. Under the Act and the Regulation, the manager of the mine had a duty to ensure the safety and health of persons working in the mine. The Regulation required the manager to regularly assess and identify risks in order to eliminate them and control the risks or minimise the risks by designing safe work systems. Ms Hallett was aware that, before the accident, Kayuga Management had taken active steps to ensure that the company's contractors complied with occupational health and safety regulations. Safety audits were performed on the defendant by Kayuga Management on a regular basis, the last audit before the accident taking place in March 2003. That audit was performed without notice to the defendant and involved an inspection of two Franna cranes in operation at the Dartbrook Mine. Previously, auditors had arrived at the defendant's depot and asked to review its systems to ensure compliance with occupational health and safety legislation. Ms Hallett was not advised by the auditors of any need to change any system.

38 The change in practices following the accident were explained by Ms Hallett and supported evidence given in detail by Mr Newman.

The defendant had supported a number of local schools, sporting events and charities - some charities received regular monetary assistance. The defendant had also made it a priority to provide labour and machinery to many sporting groups and charities for the relocation of various items and had donated portable sheds and toilets that were no longer required so that they could be used by local sporting associations. In particular, over the past 15 years, the defendant had supported Mr Meyer in his participation in the annual Variety Club of Australia Bash and had sponsored his vehicle. In addition, the defendant had encouraged its suppliers to supply sponsorship and donations. Over that period of time, Mr Meyer and his co-driver had raised approximately $140,000 for the Variety Club. Since March 2000, the defendant had donated $16,000 to the Variety Club of Australia.

39 After the accident, Ms Hallett said that the defendant did everything possible to assist and co-operated fully with the investigation by the Department of Mineral Resources. She regarded the defendant as running a reputable and highly respected business for over 30 years, having always endeavoured to carry out its operations at the highest level of safety. Considerable resources were supplied over a five day period to permit a re-enactment of the accident. The defendant had supported and assisted both the members of Mr Sullivan's family and all employees since the accident and had arranged for two counsellors to be present over a period of three months. Ms Hallett expressed the defendant's deep regret for the accident. She had personally visited Mr Sullivan's partner and parents on a number of occasions and noted that all members of the defendant, both management and employees, were extremely upset about the incident. Ms Hallett expressed her sorrow for what had happened to Mr Sullivan and understood the difficulties experienced by his immediate family. She stated that, since the accident, the defendant had done all that was reasonable to improve its safety systems. Prior to the accident, the safety systems were in a state of improvement but the accident concentrated the defendant's focus on this area of its operations.

DELIBERATION
40 Senior counsel for the defendant submitted that there were many matters that served to mitigate the penalty in this case. Here, there were two persons in control who were experienced and competent in the task: the task was simple and the expert, Mr Haynes, accepted that no full-time supervisor was required for this job. The risk assessment, regardless of its origin, was undertaken and did address most of the risks. The cause of the load dislodging had not been established, although contributing factors were the decision made by Mr Matthews and Mr Sullivan not to release the shorteners on the chains causing the chains to be widely separated on the hook, and that Mr Sullivan approached the load using his hands to touch the load while it was, presumably, still above him. It was accepted that the need to approach the load could have been eliminated by the use of a tag line.

41 The defendant identified only two areas of significant conflict with the propositions put forward by the prosecutor: firstly, whether the objective seriousness of this offence warranted a significant penalty and, secondly, whether specific deterrence should add to the overall penalty with a risk in the circumstances of this case of there being a "double counting" or a disproportionately high penalty imposed. The defendant accepted that there were obvious risks in carrying out this lifting task at the mine site but noted that they were risks that would have been obvious to the trained minds of Mr Sullivan and Mr Matthews. It was obvious that, if employees stood near or under something that was being lifted, they were exposing themselves to injury or risk of injury and there was no doubt that someone as experienced as Mr Sullivan would have known those risks. The making of a formal risk assessment had to be considered in the light of the experience of the people involved and the fact that this was regarded as something of an easy lift. It was accepted that the system in relation to risk assessments was not perfect and there was no explanation of why a risk assessment addressing the nature of this job had not been completed.

42 While these various matters nominated by the defendant have to be considered there are certain aspects that are not adequately addressed by the defendant's approach. The material before the Court suggested that the defendant had been involved in this heavy industry with its inherent dangers for a very long time and had been able to maintain a record free of occupational health and safety breaches. The defendant accepted the risks involved in the lift undertaken on this day, noted the experience of the employees involved and the defendant's quite extensive occupational health and safety system, although then under review for its admitted inadequacies, but totally avoided the question why this operation was undertaken with such a lack of adherence to well known industry standards. Senior counsel for the defendant eschewed any question that the employees were operating in a totally cavalier fashion in relation to their duties. What was not dealt with by the defendant was what part of its system of safety addressed the possibility that employees would not adhere to Australian and industry standards and good rigging practice in performing a task that appeared to be something of an everyday lift. Why did these two experienced employees allow the shorteners to remain on the chains from the previous job? Why was the lift allowed to continue when the load was not level? Why was a tag line not used and why did Mr Sullivan approach the load so that he could walk the load? Why was no particular risk assessment and work method statement prepared for this job? All those questions, unanswered by the defendant's submissions, suggested that there was not the type of supervision of employees in their day-to-day work designed to ensure adherence to good practice and company policy. It was not the absence of the type of supervision referred to by Mr Haynes in his report (that is, a presence at the site because of the nature of the lift), but that lack of overall supervision and diligence designed to ensure that the system of safety laid down by Australian and industry standards and picked up by company safety policy were reinforced in the workplace to ensure adherence to those policies and standards.

43 I accept the force of the prosecutor's submission that the failure to undertake a written risk assessment prior to the commencement of work at the mine was a significant departure from proper safe working methods, as was the use of shortened chains and the failure to use a bow shackle because of the crowding of the hook. The Statement of Agreed Facts does identify a number of well recognised departures from safe working practices that gave rise to a risk of the load in this instance becoming dislodged from the hoist hook. While it is accepted that the reason for the load failure is unknown, the risks identified were all well known and readily identifiable in the carrying out of the task at the mine on 20 November 2003 and were foreseeable: if industry standards, Australian Standards and good practice were not applied, there was a risk that a load would disconnect from the hook during the lifting task. These very risks were identified and promptly addressed by the defendant by December 2003. It is these matters, viewed in the context of the matters raised by the defendant, which nevertheless lead to a conclusion that this was a serious breach of the Act, despite the degree of control asserted by Kayuga.

44 The proper role of general deterrence in setting an appropriate penalty was not challenged and will form a significant factor in the Court's consideration in this case.

45 The issue of specific deterrence raised by the defendant essentially amounted to a submission that, in light of the system of safety already developed prior to this incident and the extensive steps taken very quickly after the incident, the imposition of a penalty with a high level of content attributable to specific deterrence would operate unfairly against the defendant. It is appropriate to have regard to the system already in place to demonstrate that attention was being paid to safe systems of work. It is also appropriate that regard be had to the manner in which the defendant addressed the risks to safety that were shown to exist as a result of this incident. The Court has long accepted that it is a relatively rare case in which specific deterrence will not play some role in the setting of an appropriate penalty where the defendant continues to be engaged in industry and, in particular, where there are inherent risks in the nature of the work of that industry - such is the case in relation to this defendant. In dealing with this issue, the matters raised by the defendant are to be considered and an assessment made as to its future conduct. The evidence showed that the defendant had spent considerable sums in maintaining occupational health and safety (even though a proportion was attributable to continuing to be able to perform work in the industry), but the nature of this offence and the nature of the industry requires that some consideration be given to specific deterrence, although I am satisfied that element should not constitute a large proportion of the penalty.
46 The defendant has a number of subjective factors to be considered as mitigating the penalty. I am satisfied that its plea of guilty was entered at an early stage and that the utilitarian value of the plea warrants a discount of 25 per cent. The defendant had no prior record and, considering that it had been in existence for just over 30 years at the time of this accident, the growing size of its business and number of employees and the fact that the work was inherently dangerous, should properly be regarded as a very good safety record. That record speaks well of the defendant's previous attention to issues of safety and the extensive steps taken as a response to the accident (but travelling far wider than addressing the risks thrown up by that incident), suggests that the defendant will more closely monitor and enforce its safety systems in the future. In particular, it might be noted that Mr Haynes highly commended the risk assessment sheet produced after the accident by the defendant.

47 The prosecutor readily conceded that the defendant was active in its co-operation with the investigation of the Department of Primary Industries and in assisting with the re-enactment of the incident. In addition, the defendant had compiled material in advance of the issues that assisted in the investigation of the accident, which aspect was particularly noted by the prosecutor. The defendant had also demonstrated its contrition in a number of ways: its early plea is to be regarded, at least in part, as an acknowledgement of its liability and a recognition of the grief and sorrow created by the loss of Mr Sullivan's life; the support (financial and otherwise) offered to Mr Sullivan's family after the accident and also to the workforce by way of counselling services over a period of time as well as the plaque commemorating both the tragic accident and the contribution of Mr Sullivan, and the public statements of regret made by senior officers of the company in the present proceedings and reiterated in submissions on instructions by senior counsel on behalf of the defendant. Further, the defendant was shown to be a good corporate citizen supporting many charitable and worthwhile causes. All of these matters will be taken into account in mitigation of the penalty.

48 The prosecutor addressed some remarks to the issue of "parity". In the related proceedings, the defendant Kayuga Mine had submitted that it was less culpable than MCS because the lifting system was that of MCS and it relied on the expertise of MCS. The countervailing factor in those matters was the significant system of control of contractors exercised by Kayuga Mine and its failure to check on the risk assessment and safe working method to be adopted for this particular lift.

49 As correctly pointed out by the prosecutor, the principle of "parity" was not strictly applicable but the principle of consistency and fairness in sentencing requires a consideration of the role of the two defendants in this accident, bearing in mind that the duties imposed on each of them under different provisions of the Act were nevertheless to be regarded as co-extensive duties. It was accepted that the roles of the two defendants were different but there were a large number of similarities: both had extensive safety systems; both had relatively large workforces engaged; both were operating in inherently dangerous industries; both used experienced personnel; both entered early pleas and had no previous record; both showed contrition and co-operated with the WorkCover Authority and both took substantial steps after the accident to address the risk that had been demonstrated to have existed. One area of distinction is in relation to specific deterrence: the defendant Kayugu Mine is no longer operating and its purpose has been completed: I have concluded earlier that, on a consideration of all the material before the Court while there is a role for specific deterrence in the setting of a penalty for MCS, that is a relatively modest role. Another distinction of some importance is that MCS has been in operation for over 30 years and maintained a clean record, whereas Kayuga Mine had been operation for only a few years and for a limited purpose when this accident occurred. Ultimately, having considered all of those matters I am persuaded by the prosecutor's submission that there was little significant difference, viewed in an overall sense, between these two defendants involved in this accident. Although they had a different role and there were some differences in relation to each defendant, there were balancing considerations such that the principles of consistency and fairness would best be met by the same final penalty being imposed on both defendants.

ORDERS
50 (1) The defendant is found guilty of a breach of s 8(1) of the

Occupational, Health and Safety Act 2000 as particularised in Matter No IRC 5850 of 2005, to which the defendant pleaded guilty.
(2) The defendant is fined the sum of $125,000 with half that sum to be paid to the prosecutor by way of moiety.
(3) The defendant is to pay the costs of the prosecutor in a sum as agreed or in the absence of agreement as ordered by the Court.

AMENDMENTS:


15/02/2007 - Words "WorkCover Authority" replaced with "Department of Primary Industries" - Paragraph(s) 47


LAST UPDATED: 15/02/2007