Rodney Dale Morrison v Helensburgh Coal Pty Limited [2008] NSWIRComm 2 (1 February 2008)

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Rodney Dale Morrison v Helensburgh Coal Pty Limited [2008] NSWIRComm 2

FILE NUMBER(S):
IRC 2394

HEARING DATE(S):
5/12/2007 and 6/12/2007

DATE OF JUDGMENT:
1 February 2008

PARTIES:
PROSECUTOR:
Rodney Dale Morrison

DEFENDANT:
Helensburgh Coal Pty Limited

CORAM:
Staunton J

CATCHWORDS: Occupational health and safety - plea of guilty - general principles - foreseeability - objective seriousness of the offence - general and specific deterrence - no prior convictions - subjective features taken into consideration - penalty imposed - orders as to penalty, moiety and costs.

LEGAL REPRESENTATIVES
PROSECUTION:
Mr S Crawshaw SC and Mr D O'Neil
SOLICITORS:
Crown Solicitor's Office

DEFENDANT:
Mr B Hodgkinson SC and Mr M Shume of counsel
SOLICITORS:
Sparke Helmore

CASES CITED:
Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 99 IR 29
Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Markarian v The Queen [2005] HCA 25: 18 May 2005
R v Gallagher (1991) 23 NSWLR 220
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131
Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60
WorkCover Authority of New South Wales v McDonalds Australia Limited and anor [2000] NSWIRComm 1123; (2000) 95 IR 383

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000

TEXTS CITED:

JUDGMENT:

2 The plea of guilty has arisen following an accident at the defendant's Metropolitan Colliery at Helensburgh on 28 May 2004. In general terms, the accident occurred when a chain connection snapped in the course of the defendant's employees attempting to rejoin a conveyer chain belt that had earlier become jammed. When the chain connection snapped, Mr Gary Hammond, an employee of the defendant, was struck on the front of his safety helmet by a component of the failed chain assembly. He sustained serious head injuries including, ultimately, the partial loss of sight in his right eye.

3 In addition to Mr Hammond, there were other employees of the defendant in the immediate vicinity when the chain connection snapped.

4 In relation to the offence charged, it is said that between 27 and 28 May 2004 at Helensburgh in New South Wales, the defendant:

failed to ensure the health, safety and welfare at work of all its employees, in particular Gary Hammond, John Boyd, Kelvin Potter, Ian Lewis, Sean Scott, Keith Jones and Phil Robinson contrary to section 8(1) of the Occupational Health and Safety Act 2000.

There was a risk of injury to employees of the defendant from metal flying through the air.

[1] Failure to provide an adequate system in relation to the unjamming, shortening and unjoining of the AFC chain in that it:

[2] Failing to ensure workers were adequately informed, instructed and trained in relation to reeving, pulling aspects of working chains and slings and working load limits.

[3] Failing to provide adequate supervision and identify clear lines of responsibility of workers in relation to the unjamming, shortening and rejoining of the AFC chain.

[4] Failing to undertake adequate risk assessment in relation to the unjamming, shortening and rejoining of the AFC chain.

6 The prosecution have tendered a statement of agreed facts and annexures in the following terms:

[2] Metropolitan Colliery (Colliery) is an underground coal mine located near the town of Helensburgh in the Southern Coalfields of NSW, approximately 50 km south of Sydney.

[3] The Colliery extracts coking specification coal using the longwall mining method from the Bulli Seam. A longwall is an underground assembly of mechanical equipment that cuts, loads and transports coal from a large insitu block.

[4] Helensburgh Coal Pty Ltd (Defendant) operated the Colliery and employed all persons who worked at the Colliery other than contractors and four senior managerial personnel employed by Excel Employment Services: the General Manager (Tony De Santis); the Commercial Manager; the Technical Services Manager; and General Manager Marketing.

[5] On 5 May 2004, the in situ process of commissioning Longwall 11 (LW11) began. The equipment installed at LW11 was a combination of the equipment from Longwall 10 and further additional components, which extended the width of the Colliery’s Longwall to 158m.

[6] The Defendant had contracted DBT Australia Pty Ltd (DBT) to assist with the commissioning process.

[7] The afternoon shift on the 27th May 2004 in LW11 Panel (Afternoon Shift) commenced at 3 pm and finished at 11 pm. Additionally, some of the Longwall crew who were on the Afternoon Shift worked a ‘tweenie’ overtime shift (on a voluntary basis), which finished at 12.30am.

[8] The night shift on the 27th and 28th May 2004 in LW11 Panel (Night Shift) commenced at 11 pm and finished at 7 am. Additionally, some of the Longwall crew who were on the Night Shift worked a ‘tweenie’ overtime shift (on a voluntary basis), which finished at 8.30am.

[9] It had been planned that the Longwall relocation would take four weeks and would be completed by 22 May 2004. However, there were delays during the relocation and at the time of the offence the relocation was already into its fifth week.

[10] The final commissioning phase of LW11 was interrupted some time after 10pm on 26 May 2004 when the Armoured Face Conveyor (AFC) inadvertently ran causing the AFC chain to jam at the Maingate Drive Unit). Prior to the jamming of the AFC, the AFC conveyor had been loaded with some cut coal as part of the commissioning process.

[11] The AFC is a mechanical means of conveying coal from the face using a steel conveyor system. The AFC chain is a series of AFC flight bars (two piece steel scrapers) connected by chain which convey coal from the AFC pan which is a frame that guides the AFC chain and flight assembly and supports cables and hoses. The Maingate Drive Unit provides the mechanical drive for the AFC and transfers coal from the AFC to the Beam Stage Loader (BSL) which is a series of modules that transfers coal from the AFC to the Colliery’s belt conveyor system.

[12] The Mine Manager was Alan Phillips. He had a statutory responsibility for the whole Colliery and all persons who are on site.

[13] Andrew Withers was the Statutory Mechanical Engineer. Mr Withers had statutory responsibility for mechanical engineering at the Colliery. Mr Withers said that he had no responsibility for the installation of the Longwall. The Colliery appointed Steven Relf as its Longwall Co-ordinator (non statutory). Mr Withers understood that the installation of the Longwall was Mr Relf’s responsibility in his role as the Longwall Co-ordinator.

[15] Ken Risk was the Colliery appointed Longwall Technical Assistant (non statutory). Mr Risk assisted and reported to Mr Relf.

[16] Mr Relf’s last shift in this position was planned to be Friday 28 May 2004.

[17] Mr Relf visited LW11 on Day Shift 27 May 2004. Mr Risk was the Longwall Underground Supervisor on this shift.

[18] On each shift during the longwall installation there was to be a Longwall Changeout Supervisor who was also called the Underground Co-ordinator and/or the Shift Supervisor (non statutory positions) (Longwall Changeout Supervisor). The Longwall Changeout Supervisors and Deputies Brief Role Description for LW10 and LW11 Relocation specified that the Longwall Changeout Supervisor was to maintain a global overview approach in certain respects with the Deputies assisting and coordinating their areas of responsibility. Annexed and marked A is a copy of this document. According to the Commissioning Book For Longwall 11 the Longwall work was to be controlled by the Shift Supervisor. Annexed and marked B is a copy of this document.

[19] The Afternoon Shift Longwall Changeout Supervisor Peter Smith, supplied under contract by Southern Engineering Services P/L, did not (contrary to expectations) attend the Afternoon Shift.

[20] For the Afternoon Shift Graham Goold was designated by the Defendant as the Afternoon Shift Engineering Supervisor. Mr Goold was an electrical engineer, not a mechanical engineer Mr Goold replaced Peter Smith on the Afternoon Shift. Mr Goold denied he was the Longwall Changeout Supervisor on the Afternoon Shift. Mr Goold reported to Mr Withers, the Mechanical Engineer in Charge.

[21] On the Afternoon Shift the Deputy was Ron Cant. He had statutory responsibility for the LW11 panel during the Afternoon Shift. At 3:00pm, Deputy Ron Cant told Mr Relf that he would take on the dual role of Longwall Changeout Supervisor and Deputy for Afternoon Shift.

[22] On the Afternoon Shift the mechanical fitter was Mick Oswald. He reported to Mr Goold and Mr Withers.

[23] The Undermanager on Night Shift was Peter Brannon. Mr Brannon was the relieving Night Shift Undermanager. For the period of the LW10 to LW11 relocation, Mr Brannon had performed the role as Undermanager once, prior to the assignment to Undermanager for the Night Shift). As the most senior mining official present at the Colliery during the Night Shift, during that time Mr Brannon had full charge and control of the operations and all persons employed at the Colliery.

[24] On the Night Shift Geoff Dwyer was a contract certified Mine Mechanical Engineer supplied by and employed by Vale SMS Contracting Services Pty Ltd (Vale).

[25] Mr Dwyer had no Longwall experience prior to his contractual employment at the Colliery on 20 April 2004. Mr Relf and Mr Withers knew Mr Dwyer had little or no Longwall experience.

[26] Mr Dwyer was designated by the Defendant as “Longwall Changeout Supervisor” for the Night Shift on the days of the offence and Messrs De Santis and Relf suggest that Dwyer had a supervisory role in relation to the Defendant’s employees.

[28] Mr Dwyer describes himself as “[Night Shift] supervisor for the longwall move” However, he stated that he was only supervising Vale personnel, Bruce Evans and John Bokulic in the activity of replacing relay bar pins. This activity commenced at 11:50pm and finished at 6:00am. The Vale personnel left the face zone of LW11 at 6:20am. Mr Dwyer was still present at 7.30 am when the accident took place. At the time of the accident there were no Vale employees in LW11 for Geoff Dwyer to supervise.

[29] On the Night Shift the Deputy was John Boyd. He was an experienced Longwall Deputy. On the Night Shift he was the replacement Night Shift Deputy and had worked in LW11 installation twice prior to the accident shift. He had statutory responsibility for the LW 11 panel during the Night Shift. He reported to Mr Brannon.

[30] On the Night Shift the LW11 crew included miners Kelvin Potter, Sean Scott, Keith Jones, Stewart McCann, Gary Hammond, mechanical fitter Phil Robinson and electrician, Ian Lewis. They reported to Mr Boyd.

[31] An attempt had been made on day shift of 27 May 2004, to unjam the AFC chain without success.

[32] Efforts to unjam the AFC chain continued without success during the Afternoon Shift. Early in the Afternoon Shift a super-flex wire rope sling was broken in an attempt to unblock the AFC chain jam using the number 1 roof support canopy.

[33] A super-flex sling is designed to fail in a non-catastrophic manner and eliminate the risk to persons from broken sling components being ejected at high speed through the air.

[34] During the middle of the afternoon shift a pulling chain was broken using an E130 Eimco in attempting to unblock the AFC chain.

[35] The two equipment failures on Afternoon Shift were not documented by the Deputy Ron Cant.

[36] Michael Oswald said that after breaking the super-flex sling no other super-flex slings were available in LW11). Mr Relf said super-flex slings were available at the Longwall storage point.

[37] During the Afternoon Shift, Mr Cant sent Jason Clough to get the Versatrac. Mr Clough was unable to locate the Versatrac and, after discussing with Mr Cant, he brought back “larger pulling chains” from the Longwall Storage Point. The chains Mr Clough brought back were 20mm herc-alloy chain assemblies. These were larger chain assemblies to the 16mm size chain sets available in LW 11 at the time.

[38] The tagged Working Load Limit (WLL) for 20mm herc-alloy chain assemblies is 12.8 tonne straight pull and 9.6 tonne reeved. The chain assemblies were purchased for the purpose of hanging rolls of conveyor belt from the Colliery roof. The 20mm herc-alloy chain assembly was not a standard Longwall chain). Chain assemblies that have forces applied to them greater than the WLL can fail in a catastrophic manner.

[39] Mr Relf spoke with the Mr Cant by phone at 8pm. Mr Relf advised Mr Cant to use the Versatrac winch, which is fitted with a super-flex 80 rope (similar to the super-flex sling), to unblock the AFC chain jam, I and, if the Versatrac could not un-jam the AFC chain, to use the Rack-a-Track. A Versatrac is a battery powered rubber tyred machine with a flat lifting plate and winch used for pulling and lifting mining equipment. I The Rack-a-Track is a pulling device using a hydraulic cylinder and a rack to pull heavy loads and is used with a specially designed super-flex sling.

[40] The shift work instruction documentation was not updated to reflect the method of work described in the conversation between Mr Relf and Mr Cant.

[41] Mr Cant was told by Mr Relf to pass on the method of work to Mr Dwyer and the Night Shift Deputy. Mr Goold visited the LW11 work site at about 8pm. Mr Goold inspected the face and as there was an estimated 250 tonne of coal on the AFC pan line and slack chain at the maingate concluded that there was no way to get slack AFC chain to the return race without pulling the chain.

[42] The maingate is the road way containing the belt conveyor to which coal is delivered by the longwall. The tailgate roadway runs parallel to the maingate roadway and is at the opposite side of the longwall block.

[43] The shearer is a double ended ranging drum power loader that cuts and loads coal onto the AFC conveyor and travels on AFC pan line.

[44] Mr Goold and Mr Cant devised an work procedure to relocate slack chain towards the tailgate end of the longwall using one 20mm herc-alloy chain assembly and the shearer. The purpose of this was to develop some slack chain at the Tailgate end of the AFC so that the Tailgate Tensioner could be retracted. The Tailgate Tensioner is the return sprocket assembly for the AFC chain. It is an unpowered sprocket. The procedure was to connect the shearer via the foundry hooks to the AFC chain.

[45] This process used the shearer to pull slack AFC chain towards the tailgate, 10 chocks at a time, using a single 20mm herc-alloy chain assembly. This work procedure was devised to reduce AFC chain tension. The foundry hooks attached to the 20mm chain assembly were connected between the shearer and the AFC chain. An instruction was added to only pull 10 lengths of AFC chain at a time to get the slack AFC chain at the maingate back to the tailgate.

[46] Towards the end of the Afternoon Shift, the shearer was used to pull slack chain three or four times. The procedure used on Afternoon Shift to pull the AFC chain proceeded without incident.

[47] Mr Withers was contacted by the Afternoon Shift Engineer Mr Goold at 9:15 pm about the possibility of using oxy acetylene to cut the AFC chain. Mr Withers then contacted Mr Phillips and they decided not to use oxy cutting. Mr Withers contacted Mr Relf and they decided that as coal had been cut that oxy-acetylene was out of the question and to persevere with the Versatrac. Mr Withers offered to go underground but was advised by Mr Relf that as the following day was Mr Relf’s last day of work that Mr Withers should be at the Colliery on the Day Shift in case Mr Withers was required to go underground. Mr Withers rang Mr Phillips back and discussed the process and was told by Mr Phillips not to go to the Colliery.

[48] The Rack-a-Track was not set up or used on either the Afternoon or Night Shifts.

[49] At the end of Afternoon Shift, Mr Goold rang Mr Withers. Mr Goold said that he informed Mr Withers of the work method using the shearer to pull AFC chain. Mr Withers said that he was not aware that the shearer was being used. Mr Withers informed Mr Goold to get the Colliery to contact him at 3:30am if the chain was not free.

[50] At the commencement of Night Shift, prior to going underground, Mr Goold explained, using diagrams, to Mr Brannon how the Afternoon Shift had used the shearer to move the AFC chain.

[51] Mr Boyd also received verbal instructions on how the Afternoon Shift had used the shearer to move the AFC chain from Mr Cant when he arrived underground.

[52] The 20mm herc-alloy chain reeving method altered between the Afternoon Shift and Night Shift. A decision was made that pulling from a shearer cover plate was unsuitable. The two 20mm herc-alloy chain assemblies were joined around the shearer ranging arm and a shortening hook was used to join them together. A ranging arm is the component of a shearer which transmits drive from the electric motor to the cutting drum. There is a ranging arm for the maingate and the tailgate. The shearer maingate ranging arm was used to pull the slack AFC chain to the tailgate and then back towards the maingate.

[53] The reeving method (reeving is a process of fastening by placing through or around something) placed two Titan connectors in side pull. A connector is a two part rigid metal chain joining assembly that allows two loose ends to be connected as one. There is a significant reduction in the ultimate load capacity of the Titan connector when placed in side pull compared with a straight pull.

[54] In addition, a force in excess of the chain assembly’s WLL was applied by the shearer to the chain assembly. The shearer maingate ranging arm was used to pull the AFC chain near to the maingate and pulled towards the tailgate.

[55] Early in the Night Shift one 20mm Titan chain connector was damaged using this method. Mr Scott was operating the shearer. The failure occurred in a non-catastrophic manner, ie the Titan connector had initial failure resulting in localised necking and a slight twist. Annexed and marked C is a diagram representing this event.

[56] Prior to 3.30 am the Night Shift personnel unblocked the AFC chain jam and damaged one 20mm herc-alloy chain assembly in the process. Two means of pull force were applied simultaneously to unblock the AFC chain jam, namely, the Versatrac rubber tyred vehicle and the slow run device on the AFC. The shearer with the 20mm herc-alloy chain assemblies was used to pull the slack AFC chain as it formed over the maingate AFC sprocket towards the tailgate during the unjamming process.

[57] The AFC chain was now free and the Night Shift crew continued with the work method of using the shearer to pull slack AFC chain.

[58] Mr Brannon attended in LW11 panel from 3:00am to 5:30am. He witnessed the shearer being used to pull AFC chain and observed the 20mm chains being used. Mr Brannon inspected the face conveyor, maingate drive and shearer. Mr Brannon did not see any broken chains.

[59] Mr Withers telephoned the Colliery at 5.00am to see whether the AFC was still jammed and was told it was clear but was not told about the broken chains and made no inquiry on any of the current work processes.

[60] Mr Relf spoke with Mr Boyd and Mr Brannon at about 6am. They reported that the jam had been freed and they were working towards re-joining the AFC chain so commissioning could continue. No discussion took place concerning the work method that was being used to move the slack AFC chain.

[61] After 7.00 am those members of the Night Shift crew (who had volunteered) started to work a “tweenie’. They continued the task of shortening the AFC chain using the shearer and 20mm herc-alloy configuration in order to relocate the slack AFC chain to a place where the excess AFC chain could be removed.

[62] Between 6.00 am and 7.30 am an attempt was made to pull 2 to 3 metres of slack AFC chain. Mr Hammond was operating the shearer at this time. During this process a second 20mm herc-alloy chain assembly broke when two 20mm herc-alloy chains assemblies were reeved over the maingate ranging arm. The pulling direction was towards the maingate and the 20mm herc-alloy chain assembly was pulling underneath the shearer located in the vicinity of 17 to 22 AFC pan. This failure was not documented.

[63] A force in excess of the chain assembly’s WLL had been applied by the shearer and the failed connector involved in this incident was side loaded. Annexed and marked D is a diagram representing this event.

[64] A group discussion took place and it was decided to continue with a similar work method using the shearer and the herc-alloy chain assemblies. Another 20mm herc-alloy chain assembly was sourced from the maingate.

[65] Mr Dwyer from Vale had direct involvement in group discussions concerning the work activities of freeing up the jammed AFC chain and using the shearer to move slack AFC chain on the Night Shift.

[66] Another attempt was made to pull the AFC chain. The maximum haulage force that could be applied to a load by the shearer was 36 tonnes line pull.

[<img src="/ircjudgments/2008nswirc.nsf/files/2008_NSWIRComm_2_Pic_01.jpg/$file/2008_NSWIRComm_2_Pic_01.jpg" alt="[2008] NSWIRComm 2 - Pic01">]

[68] The shearer was re-positioned with the tailgate ranging arm over the disconnected AFC chain near 17 AFC pan. The disconnecting of the AFC chain was done to allow for a straighter pull of the AFC chain by the shearer. Two 20mm herc-alloy chain assemblies were reeved over the tailgate ranging arm. The AFC chain which was now disconnected allowed for the AFC flight bars to be lifted from the AFC pan race.

[<img src="/ircjudgments/2008nswirc.nsf/files/2008_NSWIRComm_2_Pic_02.jpg/$file/2008_NSWIRComm_2_Pic_02.jpg" alt="[2008] NSWIRComm 2 - Pic02">]

[69] Gary Hammond was operating the Longwall Shearer by remote radio control from the vicinity of Number 19 Chock walkway with the purpose of relocating the AFC chain. The AFC chain was loaded with coal along the majority of its length.

[70] At approximately 7:30am, the Titan connectors attached to both of the herc-alloy chain assemblies went into side pull. The reeving method was a factor in the Titan Connectors being placed in side pull. A Titan connector failed under the load from the shearer.

[71] The AFC chain was observed to move in a surging manner when a large bang was heard. Mr Hammond was seriously injured when he was struck on the front of his safety helmet by a component from the failed 20mm herc-alloy chain assembly. The force of the blow was sufficient to break the safety cap lamp and split the safety helmet. Gary Hammond slumped and was bleeding profusely from a head wound.

[<img src="/ircjudgments/2008nswirc.nsf/files/2008_NSWIRComm_2_Pic_03.jpg/$file/2008_NSWIRComm_2_Pic_03.jpg" alt="[2008] NSWIRComm 2 - Pic03">]

[73] At the time of the accident the persons located near to Mr Hammond included Mr Boyd , Mr Potter, Mr Lewis, Mr Scott and Mr Jones. Mr Robinson was located further away heading towards the tailgate.

[74] The chain connector was incorrectly positioned in side load. Test results indicated a significant reduction in the ultimate load capacity of a Titan 18/20-T8 connector when pulled in sideways compared with a straight pull.

[<img src="/ircjudgments/2008nswirc.nsf/files/2008_NSWIRComm_2_Pic_04.jpg/$file/2008_NSWIRComm_2_Pic_04.jpg" alt="[2008] NSWIRComm 2 - Pic04">]

[<img src="/ircjudgments/2008nswirc.nsf/files/2008_NSWIRComm_2_Pic_05.jpg/$file/2008_NSWIRComm_2_Pic_05.jpg" alt="[2008] NSWIRComm 2 - Pic05">]

[<img src="/ircjudgments/2008nswirc.nsf/files/2008_NSWIRComm_2_Pic_06.jpg/$file/2008_NSWIRComm_2_Pic_06.jpg" alt="[2008] NSWIRComm 2 - Pic06">]

[75] The major mechanical contributory factors in the accident were that the Titan chain connector failed as a result of a combination of being loaded to destruction due to the joining (incorrect connector orientation) and slinging practice adopted and the WLL not being complied with. Annexed and marked E is a diagram representing this event.

[76] If the connectors had been reeved in straight pull, although severely overloaded by the 36 tonne line pull from the shearer, neither the chain assembly nor the Titan connectors would have failed.

(a) there were no material faults pre-existing on the failed connector involved in the accident which would have caused the Titan Connector to have influenced or contributed greatly to the failure.

(b) the failure mode of the Titan connector involved in the accident was consistent with items tested and subjected to side pull.

[78] The Mine Manager caused an Accident Plan to be made. Annexed and marked F is a copy of the Accident Plan which has been marked to show the location of various persons, plant and equipment at the time of the accident.

[79] DBT was contracted, amongst other things, to provide service technicians whose role was to provide advice and assistance in relation to the assembly of additional LW11 equipment and ensure that the equipment was correctly commissioned to DBT’s supplied documentation.

[80] The service technicians supplied by DBT for the LW11 installation and commissioning Trevor Monk worked on the Afternoon Shift and Wayne Cardow worked on the Night Shift.

[81] DBT service technicians worked subject to the supervision and control of statutory officials at the Colliery.

[82] Mr Monk took part in the discussion concerning the development of the work methods for unjamming the AFC chain and using the shearer to pull the slack AFC chain.

[83] Mr Cardow was present during discussion of the work method of using the shearer to shorten AFC Longwall chain.). Mr Cardow was still providing technical support throughout the period of breakdown and was consulted about the system of work used on the Night Shift.

[84] Mr Boyd had not been told that the 20mm chains were purchased to hang rolls of conveyor belt from the roof.

[85] No person involved in the work processes where the shearer was used to pull on the chain knew the correct shearer pulling capacity.

[86] There were no documented work procedures, , for the activity of relocating slack AFC chain using the Shearer. There was no specific training in a safe work procedure for pulling or shortening AFC chain.

[87] A documented procedure for shortening the AFC chain was in the “Longwall Operators Manual” available in the information library located in LW11. It had a section entitled “Extending Or Shortening AFC Chains”. Annexed and marked G is a copy of the document. The first point in that document was that the AFC was to be “run empty”. The documented procedure detailed using the AFC chain clamp and slow run device on the AFC drive motor. The documented procedures were not implemented by the Night Shift crew.

[88] The Mine Manager did not know about this document. Mr Brannon indicated that he was not aware of any written standard working procedure for the task of unjamming or re-tensioning the AFC chain.

[89] The Defendant had a document entitled “Longwall Relocation LW10 to LW11 Manual”. It contained drawings of equipment using pulling and lifting chains for a variety of longwall tasks but not for pulling AFC chain with the shearer. It did not provide any instruction on the work process of unjamming or shortening the AFC chain. There was no documentation in this manual on the pulling forces able to be generated by the machines used to pull and lift. There was no documentation in this manual on the size of chains and slings to use or WLL capacity of the chain and slings being used.

[90] The Defendant had a copy of the presentation titled “LW 10 to LW11 relocation – crew meeting April-May 2004”, which was given to the crew at a Longwall installation training meeting. It contained no instructions on AFC chain unjamming or shortening procedure.

[91] The shearer had been used previously at the Colliery to take up slack in the AFC chain. In particular, the shearer had been used previously on LW10 face installation to shorten AFC chain. This work method used a super flex 80 dead sling. This procedure had not been documented.

[92] There was no written policy or procedure regarding what slings to use in what circumstances.

[93] In July 2003, the Defendant organised training in the use of chains and slings for its employees through Bullivants. This training ran for approximately one hour and was a non-accredited industry information training session. The course was based on a modified lifting module of a Bullivants training course. This was a chain awareness training course and the competency of the course attendees was not assessed during or after the course.

[94] This training did not cover the misuse of chain connectors but did address the need to identify loads. The course did not focus on the pulling aspects of working with chains and slings. Pulling was not covered in this training and there was no information in the course regarding unknown loads. There was no practical demonstration involved in the training.

[95] Not all the Defendant’s employees working on the Afternoon Shift and Night Shift attended the Bullivants’ course. Some of the relevant workers such as Mr Lewis, Mr Potter, Mr Hammond and Mr Boyd did not attend this course.

[96] Crew working on the Afternoon Shift and Night Shift in LW11 had limited and incorrect knowledge of the pulling forces of the equipment they were using.

[97] The activity of pulling the AFC chain using the 20mm herc-alloy chain assemblies was a non routine work task.

[98] There was no documented risk assessments of changed work methods made over the Afternoon and Night Shifts.

[99] No assessment took into account the consequences of the 20mm chain assembly failing from overload by the force applied by the shearer.

[100] None of the risk assessments addressed the positioning of the crew during the pulling process.

[1] Failure to provide an adequate system in relation to the unjamming, shortening and joining of the AFC chain in that it:

[2] Failing to ensure workers were adequately informed, instructed and trained in relation to reeving , pulling aspects of working chains and slings and working load limits.

[3] Failing to provide adequate supervision and identify clear lines of responsibility of workers in relation to the unjamming, shortening and rejoining of the AFC chain.

[4] Failing to undertake adequate risk assessment in relation to the unjamming, shortening and rejoining of the AFC chain.

[102] A significant risk exists when large unknown forces are applied to chain assemblies because of the sudden release of strain energy that can cause broken parts to be thrown with significant velocity in unpredictable directions.

[103] As a result of the Defendant’s failures Mr Hammond, Mr Boyd, Mr Potter, Mr Lewis, Mr Scott, Mr Jones and Mr Robinson were placed at risk of injury from metal flying through the air at speed and hitting them.

[104] The Defendant conducted a Risk Assessment for the LW11 start up on 1 June 2004 following the accident on 28 May 2004.

[105] The Defendant issued a notice on 1 June 2004 to all employees that any use of chains to pull a load must be approved by the Mine Mechanical Engineer or Mine Manager.

[106] The Defendant held refresher training course provided by All-Ways Rigging for employees on 14 June 2004.

[107] The Defendant conducted risk assessment on the use of slings and chains completed on 30 September 2004.

[108] The Defendant completed a Metropolitan Mine Safety Management System- slings and chains management plan on 20 September 2004.

[109] The Mine Mechanical Engineer instigated a lifting and pulling equipment asset register and inspection report completed on 20 September 2004.

[110] Placement of Sling and Chain Management Plan documents at the work place completed on 6 October 2004.

[111] The Defendant reports monthly to the Metropolitan District Inspector of Coal Mines and report breakages to chain and slings and provide copies of the Investigation undertaken.

7 In addition to the agreed facts, the prosecution tendered a bundle of documents. The following, as indexed and identified, were admitted without objection:

8 On behalf of the defendant, an affidavit with annexures of Mr Steven Relf was tendered without objection. Mr Relf has been employed by the defendant as Development Engineer since 2006 but has been employed at the Metropolitan Colliery since 1999. At the time of the accident in May 2004, he was responsible for the relocation and setting up of Longwall 11.

10 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account.

11 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:

....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

12 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.

13 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 99 IR 29 at [81].

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

15 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at [73]-[77]. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at [74] as follows:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]- [43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

16 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

17 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure:

... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.

18 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]:

Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ... (emphasis added)

19 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]:

... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

20 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

21 As the defendant has no prior convictions, the maximum penalty that may be imposed is $550,000.

22 As the agreed facts disclose, the defendant operates the Metropolitan Colliery near the town of Helensburgh in New South Wales. It is an underground coalmine and the Colliery extracts coking specification coal using the longwall mining method. A longwall is an underground assembly of mechanical equipment that cuts, loads and transports coal from a large in situ block. A diagrammatic sketch (not to scale) of a longwall in place is annexure A to this judgment to assist in understanding the extent of the mechanical equipment that, taken together, comprise a longwall.

23 The origins of the offence now before the Court was the process being undertaken by the defendant in May 2004 of commissioning what was known as Longwall 11. Given the nature and extent of the mechanical equipment required to be put in place, the physical relocation is a difficult and protracted process that takes approximately four to six weeks to complete. The planning stage for such a process takes approximately eight months.

24 According to Mr Relf, the total team required for the relocation of a longwall is approximately 70 to 75 people. As Mr Relf explained:

[58] ... The Colliery obtains these people by, once production from the Old Block stops, reallocating its employees to the Relocation and using external labour provided by original equipment manufacturers (OEMs) and labour hire companies. This external support includes skilled and semi-skilled people and totals approximately fifty per cent of the Relocation Team.

25 One of the component parts of Longwall 11 required to be installed was the Armoured Face Conveyer (AFC). As para [11] of the agreed facts discloses:

The AFC is a mechanical means of conveying coal from the face using a steel conveyor system. The AFC chain is a series of AFC flight bars (two piece steel scrapers) connected by chain which convey coal from the AFC pan which is a frame that guides the AFC chain and flight assembly and supports cables and hoses. The Maingate Drive Unit provides the mechanical drive for the AFC and transfers coal from the AFC to the Beam Stage Loader (BSL) which is a series of modules that transfers coal from the AFC to the Colliery’s belt conveyor system.

26 When regard is had to the above outline of the AFC by reference to annexure A, the nature and extent of the components that, together, make up a longwall is more readily appreciated. The AFC is identified in annexure A as the Face Conveyor and the Beam Stage Loader (BSL) is identified as the Stage Loader.

27 It should be noted at this point that a company, DBT, was contracted by the defendant to undertake the commissioning process of the AFC as part of the installation of Longwall 11. That much is disclosed in the affidavit of Mr Steven Relf as follows:

[100] Once the equipment had been installed, the Colliery required a commissioning process to be followed whereby each piece of equipment was tested and a report completed, which I oversaw. For example, the commissioning process for the AFC, which was conducted by DBT specialised service engineers, included:

100.2 conducting a ‘no load’ run with the appropriate checks and inspections; and

100.3 conducting a loaded test in conjunction with the running of the shearer from tailgate back to maingate along the face. This test is designed to see how the AFC functions with a load of coal on it and to remove the face rib support bolts so they do not run out through the normal coal system.

28 The contractual relationship between the defendant and DBT will be dealt with further in this judgment when assessing the objective seriousness of the offence as part of the defendant's overall culpability for the offence for which it has pleaded guilty.

29 The relevant dates for the purposes of the offence commence with the afternoon shift of 26 May 2004 until the beginning of the day shift at 7:00am on 28 May 2004. That is because the AFC jammed some time after 10:00pm on 26 May 2004 (see para [10] of agreed facts). It was unblocked at about 3:30am on 28 May 2004 during the night shift: (see para [56] of the agreed facts). It was then necessary to rejoin the AFC chain so commissioning could continue. That process continued until between 7:00am and 7:30am that day. Again, as the facts describe:

30 To begin with, the key personnel at the Colliery over the above period were as follows:

	Afternoon Shift 26/5/04	Night Shift 27/5/04	Day Shift 27/5/04	Afternoon Shift 27/5/04	Night Shift 27-28/5/04 11pm start	Day Shift 28/5/04 7am start
General Manager			Tony De Santis			Tony De Santis
Mine Manager			Alan Phillips			Alan Phillips
Shift Undermanager	Kerry Martin	Ivan Stringer	Peter Hestelow	Kerry Martin	Peter Brannon	Peter Hestelow
Electrical Engineer in Charge			John Weaver
Mechanical Engineer in Charge			Andy Withers			Andy Withers
Longwall Co-ordinator			Steve Relf			Steve Relf
HCPL Engineering Supervisor		Geoff Dwyer (employed by Vale)	Ken Risk	Graham Goold	Geoff Dwyer (employed by Vale)	Ken Risk
OHS Co-ordinator			Paul Smith			Paul Smith
Longwall Deputy	Ron Cant	Gary Nixon	Don Coltman	Ron Cant	John Boyd	Don Coltman
Outbye deputies who entered the L/W 11 Face	-	-	-	-	-
HCPL Leading Hand Fitters	Dave Johnson	Brian Sainsbury	Peter Scott	Dave Johnson	Brian Sainsbury
HCPL Fitters	Matt Ketley, Mick Ostwald	Phil Robinson	Mark Thompson	Mick Oswald, Matt Kettley	Phil Robinson
Contract Fitters	Mick Warren (Vale)	Wayne Cardow (DBT)	Chris Spong (Vale)	Mick Warren	Wayne Cardow (DBT)
Contract Engineering Supervision	Trevor Monk (DBT), Ian Scott (Longwall Hydraulics) Till 7.00pm		Ian Scott, (Longwall Hydraulics), Peter Pulik (NPG)	Trevor Monk (DBT)	Ken Osbourne (Longwall Hydraulics)

31 The nub of the offence centres around the jamming of the AFC chain during the installation of Longwall 11 and the subsequent steps taken to unjoin it and then rejoin it. As reference to the agreed facts discloses, that was not a matter that was readily resolved. Indeed, various attempts were made to unjam the AFC as paras [32] to [39] of those facts readily disclose. As is evident, the jammed AFC was ultimately freed and it was in the rejoining of the AFC chain that the accident involving the injuries to Mr Hammond occurred.

32 It is not my intention to repeat in large part the agreed facts which are in themselves detailed and reveal quite explicitly the steps taken by the defendant as part of the longwall commissioning process as well as the steps undertaken and, in some respects not taken by the defendant, leading to the offence to which it has pleaded.

33 Ultimately, once the jammed AFC was freed, it was necessary for the defendant to rejoin the AFC chain. That process was undertaken by the defendant's employees utilising a 20mm herc alloy chain configuration together with the shearer in order to relocate the slack AFC chain to a place where the excess AFC chain could be removed. In doing so, the chain, under strain, failed. As the facts disclose:

34 The specific failures are contained within the charge. Overall, they go in essence to an inadequate system of work in relation to the procedure to be adopted in unjamming the AFC chain. Included as part of that inadequate system is a failure both as to information, instruction and training in relation to aspects of work undertaken to unjam the AFC chain, a failure to provide adequate supervision and clear lines of responsibility in relation to that process and a failure to undertake an adequate risk assessment in relation to that process.

35 By entering a plea of guilty to the failures as identified, the defendant has acknowledged at the outset those areas where its overall system of work was clearly deficient and which, in turn, established a causal relation between those failures and the risk to safety that arose in relation to Mr Hammond as well as other employees of the defendant in the proximity of the AFC when the herc alloy chain snapped.

36 There are matters raised by the prosecutor the defendant does take some issue with. In the first instance, it is said by the prosecutor that the defendant and, in particular, Mr Relf, had acknowledged there had been no risk assessment undertaken for the installation of Longwall 11. That statement in itself is not strictly correct when one has regard to Mr Relf's explanation and, more particularly, the nature of the undertaking involved in the installation of Longwall 11. Reference to annexure A and the information before the Court makes it clear that the installation of Longwall 11 was not, in the most general sense, amenable to one overall risk assessment. As Mr Relf explained in his record of interview in the following terms:

A123: No. It is not normal practice to carry out a formal risk assessment matrix style investigation prior to a longwall move. Identify high risk tasks are assessed separately and procedures put in place for those tasks. Longwall 10-11 information booklet has information included as a result of assessment of specific risks. Every shift has a pre-shift toolbox talk to discuss any risks involved with their task for that shift as stated previously.

37 The reality is that while there was no overall risk assessment for the installation of Longwall 11, there was clearly, as I perceive it, a risk assessment approach to the various component activities that, taken together, went towards the installation of the longwall. In short, the process of installation was of such a magnitude that one overall risk assessment would not have sufficed to address the tasks to be undertaken. Instead, as Mr Relf explained, the significant tasks were broken down. They were then risk assessed in relation to the system of work that was in place for the particular task to be undertaken and a risk assessment approach was adopted to ensure their safe installation.

38 It has to be said that the risk assessment approach adopted by the defendant's employees was twofold. There was a requirement for a written risk assessment in certain circumstances. Outside those circumstances, the approach was by way of on-the-job consultation and discussion amongst the relevant employees in order to ensure that all aspects of the work to be performed were understood. This seemed to be the approach referred to by Mr Relf as a "Take Two" that, as I understand it, was the defendant's expression for assessing risk. As Mr Relf elaborated in his affidavit:

[176] HCPL’s policy for risk assessments is for a written risk assessment to be conducted in the following circumstances:

176.3 as required by the Colliery’s Management Plans (for example, the Outburst Management Plan requires a permit to mine risk assessment to be conducted for all development driveages).

[177] In addition to written risk assessments, in 2003 HCPL introduced a risk assessment process called “Take Two” (Take Two). All employees at the Colliery were trained in this process.

[178] Take Two is a set of rules/guidelines that workers can use to assist them in hazard identification. Take Two training includes:

178.7 practical scenarios to test the workers’ perception of risk analysis and hazard identification;

178.9 basic elements of hazard identification and the tools required in ‘Take Two, Take Time for Safety’, which are:

39 The on-the-job consultation and discussion approach to risk assessment was evidenced in the steps taken to unjam the AFC chain as explained by Mr Goold and Mr Cant - two of the defendant's employees involved in that process. Mr Goold was working on the afternoon shift of 27 May 2004, as was Mr Cant. Their respective roles on that shift are explained in the agreed facts thus:

40 When asked about the risk assessment approach to the unjamming of the AFC chain, Mr Goold stated:

Q51: So as far as any risk assessment in the process of the decision making for the tensioning of the AFC chain, what risk assessment was undertaken?

A: The deputy and I, in consultation with the fitter, looked at the best way that we could achieve getting slack to the other side. If we had to cut it we couldn't have tension on the chain, so we had to get slack to the tailgate. So if we had cut the chain, if we had cutting equipment or cut the chain the way it was, it would have been dangerous. We had to first get the slack to the other side of where we were working and the safe way to do that, because of the amount of coal that was on the face, was to pull it in short sections.

Q52: Please describe to me any risk analysis methods used prior to the use of chains to pull slack AFC chain on your shift.

A: The consultation process between myself, the fitter, the DBT Service rep and Assistant Engineer did an informal risk assessment and it was decided that we wouldn't attempt to pull all of the chain but only 10 Chock lengths of chain at one time. The majority of people were sent to crib while this process was carried out and that's about as much as we did as far as risk analysis goes.

42 By entering its plea, the defendant has acknowledged, in relation to the task of unjamming the AFC chain and the subsequent task of rejoining it, there was clearly an inadequate approach taken by them to the task of risk assessment. Mr Relf acknowledged there had been prior occasions, admittedly not all that frequent, when the AFC chain had previously jammed in longwall operations. However, there was no documented work method statement, including a risk assessment approach, as to the steps to be followed in unjamming and then rejoining the AFC chain. It has to be said that Mr Relf had not encountered a jamming of the AFC chain in the factual circumstances that arose in this matter. Nevertheless, given that the jamming of the AFC chain was not an unknown occurrence, it would be expected that a safe system of work, including a risk assessment approach, would be in place. I will return to that issue in due course.

43 Counsel for the prosecutor contended that as part of the defendant's inadequate supervision, the defendant's relevant supervisory employees, including people such as Mr Relf, did not in a proactive sense make contemporaneous enquiries as to what was actually occurring at the workplace in order to free the AFC chain. According to counsel for the prosecutor, if Mr Relf had been more proactive in making such enquiries, it would undoubtedly have revealed that workers were working in an unsafe manner.

44 I think this is a somewhat overstated characterisation of the defendant's failures in relation to inadequate supervision. This is not a case where the defendant's supervisors did nothing by way of supervision and/or instructions. It is clear Mr Relf had provided the defendant's employees with a system that was to be adopted in order to free the AFC chain. As Mr Relf explained:

[106] On 27 May 2004, Mr Cant called me to get advice on how best to unjam the AFC. I directed him to utilise superflex slings in conjunction with the versatrac and the slow run device. In my experience superflex slings have been used in the past during Relocations.

[107] Superflex slings, and other spare equipment, are stored in the underground longwall spares storage area at 27 cut through, B West, which is clearly signposted with reflective 750 x 300mm signs saying “Longwall Spares”. The Longwall Technical Assistant is responsible for auditing the superflex slings every month. At the time of the Incident, superflex slings in working condition were stored in this area.

[105] Superflex slings are made from a high tensile plaited wire rope laid in a four by three sinnet configuration. Standard superflex slings are woven from 1mm to 28mm diameter wire, are extremely flexible, have excellent applications in general lifting and slinging particularly where choking of the load is required and are designed to break in a non-catastrophic manner.

46 The steps taken by Mr Relf to advise Mr Cant as to the steps to be followed to free the AFC chain are also confirmed in the agreed facts as follows:

[39] Mr Relf spoke with the Mr Cant by phone at 8pm. Mr Relf advised Mr Cant to use the Versatrac winch, which is fitted with a super-flex 80 rope (similar to the super-flex sling), to unblock the AFC chain jam, I and, if the Versatrac could not un-jam the AFC chain, to use the Rack-a-Track. A Versatrac is a battery powered rubber tyred machine with a flat lifting plate and winch used for pulling and lifting mining equipment. The Rack-a-Track is a pulling device using a hydraulic cylinder and a rack to pull heavy loads and is used with a specially designed super-flex sling.

[33] A super-flex sling is designed to fail in a non-catastrophic manner and eliminate the risk to persons from broken sling components being ejected at high speed through the air.

47 It is unfortunate and goes to the failure of inadequate supervision as part of the defendant's overall system of work that Mr Relf's instruction was not updated in the shiftwork instruction documentation to reflect the method of work he described in his conversation with Mr Cant.

48 Evidence as to Mr Relf's actions in instructing Mr Cant as to how the defendant's employees were to free the AFC chain are also found in Mr Relf's record of interview as follows:

A72: ... Due to the fact that the afternoon shift engineer that was employed, Peter Smith, had failed to turn up for two days, and again he failed to turn up on the Thursday, for whatever reasons I still haven't got to the bottom of, Ronnie Cant said to me that he was quite prepared to be the shift coordinator/deputy. He is a very capable person and he had seen no problem with that.

We discussed ways to remove the chain and discussed the use of the dead slings, which are the super flex slings, and getting more equipment, lifting equipment, from outbye if required, namely these super flex slings.

The crew was then stopped from going underground and we had a little short meeting in the briefing room and discussed what was going on and we discussed actually removing the stopping and some of the cans that were in the face cut through. They were only installed as part of production cycle and it wasn't a matter of concern that we remove these cans, because they had only just been set and set up to move a Eimco E130 with the dead slings to assist to remove the chain with the slow running device, because from day shift they weren't having any success.

The guys on the crew agreed it was a good idea and people were deployed to go to the outbye and pick up the appropriate lifting equipment. That was my last contact with afternoon shift and I continued on with my other work and they went underground.

My next contact with afternoon shift was at approximately 8pm and I talked to Ron Cant. They were having issues with the Eimco and they said it still didn't have enough grunt, in his words, to remove the chain and I said, "look, Ronnie, I think you should go out and get a Versatrack and bring the Versatrack in to assist in the pull" because it also used a dead sling which is a super flex 80 winch rope, and I said "look, at the end of the day the next step is to get the Rack-a-Track" which is the miner recovery unit, and set it up, ...

Q79: That discussion you had with Ron Cant at the 8 o'clock time, was at any time the use of the shearer pulling the AFC chain discussed with Ron?

A: No, not at all. The only thing we discussed is the use of the dead slings, what we call the shearer sling, which is a super flex 80 sling which is rated at a straight pull of 10 tonne and the use of the Versatrack and the slow run device and then the Rack-a-Track of course.

49 No issue was taken by the prosecution to the above steps as detailed by Mr Relf and I accept them as correctly reflecting his actions at the time.

50 Further, Mr Cant was told to pass on the message for freeing the AFC chain to Mr Dwyer as para [41] of the agreed facts confirmed as follows:

Mr Cant was told by Mr Relf to pass on the method of work to Mr Dwyer and the Night Shift Deputy. Mr Goold visited the LW11 work site at about 8pm. Mr Goold inspected the face and as there was an estimated 250 tonne of coal on the AFC pan line and slack chain at the maingate concluded that there was no way to get slack AFC chain to the return race without pulling the chain.

51 It is clear there was a breakdown in communication by way of instruction and information, including attendant supervision, in order to ensure the system of work being followed in relation to the unjamming and rejoining of the AFC chain was being done safely and in accordance with the instructions given. It was not, however, a situation that stemmed from a total failure by the defendant's relevant supervisory employees to convey any information to employees, rather a failure to ensure the instruction was properly conveyed and complied with.

52 By way of example of the absence of clear lines of responsibility, counsel for the prosecutor pointed to the evidence of Mr Relf concerning the role of Mr Withers in relation to the work being undertaken to install Longwall 11. In the first instance, Mr Withers was not called to give evidence and reliance was placed on his statement to the Inspector following the accident as to his role at the mine and in relation to the longwall. His explanation was as follows:

A28: My job as mechanical engineer at Helensburgh I am responsible for all statutory inspections throughout the mine. I am also in charge of all mechanical operations outbye of the longwall. I am not responsible for the longwall, so during that longwall changeover it would have been my responsibility to ensure that all the equipment used to do the changeover was in statutory compliance, meaning all the 103 inspections were carried out, all defects highlighted on the equipment and acted on.

Q32: So just to clarify that position, you don't consider it your role to have any responsibility for any work on the longwall 11 installation site?

A: When I go underground I try to get underground two days a week when I can. Throughout my days underground I will do site inspections and one of them may include the longwall 11. That would be to check statutory compliance, checking covers and guards and things like that.

53 By way of explanation, Mr Withers explanation that he was responsible for mechanical operations 'outbye' of the longwall referred to operations outside the mine proper.

54 Mr Relf gave evidence before me that was, at first glance, somewhat at odds with Mr Withers' statement as to the extent of his role and responsibilities. As Mr Relf said in cross examination:

Q. As the statutory mechanical engineer in charge, what is your understanding of his statutory duty or what is your understanding of what his statutory duty was at the time of this offence?

A. Mr Wither's role as a statute mechanical engineer in charge was to provide safe system of work, to provide auditing systems for maintenance methods of work to the mine as required by the Commonwealth regulation act and regulations at the time.

55 Notwithstanding the apparent confusion between Mr Withers and Mr Relf as to the extent and the nature of Mr Withers' involvement, the view I have of Mr Withers' involvement is that he was, at the relevant time, responsible for all statutory inspections relating to mechanical operations throughout the mine. In that sense, he was also in charge of mechanical operations in relation to the longwall. In other words, he was not responsible for the actual installation of the longwall but what he does say is that during the longwall changeover it would have been his responsibility to ensure that all the equipment used in the installation of the longwall was statutorily compliant. Indeed, Mr Withers was consulted during the relevant period of 26 to 28 May 2004 as to steps that may be taken in order to help free the AFC chain.

56 As an example of the defendant's failure to establish clear lines of responsibility for the work being undertaken, counsel for the prosecutor pointed to the role of Mr Dwyer. He was, it will be noted by reference to para [30] of the agreed facts, acting as the defendant's Engineering Supervisor on the Night Shift of 27-28 May 2004. Mr Dwyer was an employee of Vale SMS Contracting Services Pty Limited, a labour hire company. Paras [24] to [28] of the agreed facts explain Mr Dwyer's role as follows:

[24] On the Night Shift Geoff Dwyer was a contract certified Mine Mechanical Engineer supplied by and employed by Vale SMS Contracting Services Pty Ltd (Vale).

[25] Mr Dwyer had no Longwall experience prior to his contractual employment at the Colliery on 20 April 2004. Mr Relf and Mr Withers knew Mr Dwyer had little or no Longwall experience.

57 Further, in relation to Mr Dwyer, Mr Relf in his affidavit explains as follows:

[85] When I selected Mr Dwyer, I was aware that he had no practical longwall experience; however, I required his mechanical expertise and supervisory experience. Mr Dwyer’s position required him to support and assist statutory officials during the Relocation. Annexed and marked ‘I’ is a copy of Mr Dwyer’s job description and curriculum vitae. This document was provided to Mr Dwyer before he commenced working in the role of supervisor. I had a meeting with Mr Dwyer during which I took him through the document and identified to him the responsibilities of the job he was about to commence.

[86] I am aware that Mr Dwyer has suggested that his responsibility only extended to the supervision of Vale employees. It is not clear to me why Mr Dwyer has made the suggestion that his supervisory role was limited. He clearly had a supervisory role in relation to all of the people on the shift, consistent with the job description at annexure ‘I’. He was working with and assisting the Deputy with resourcing issues and provide mechanical engineering advice.

58 There seems little doubt Mr Dwyer was operating under a misapprehension as to the extent and nature of his responsibility during the critical nightshift of 27 to 28 May 2004. He was, on any view, involved in the ongoing discussions that took place during that shift as to the steps that were going to be taken to free the AFC chain. Nevertheless, the clear misunderstanding that Mr Dwyer had about the limited nature of his supervisory role would certainly have raised the prospect of a breakdown in communication with employees and the overall system of work to be followed and by whom.

59 In all the circumstances, as the facts disclose and as the defendant acknowledges, while Mr Relf may have given instructions to Mr Cant as to steps to be taken to free the AFC chain, there was no formal process in place, either orally or in documentary form, as to the steps to be taken by those employees tasked with the responsibility of actually doing the job. That factor in itself would undoubtedly have raised the possibility of problems occurring and enhanced the possibility of risks to safety arising.

60 The Full Bench in Capral said at [94] that ‘a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences’. In isolation, the potential for ‘serious consequences’ is not conclusive of the nature and quality of the offence, but it is clear that such a factor may be considered when assessing the ultimate culpability of a defendant.

61 Further, as was stated in Capral at [82], the presence of risk of injury ‘will necessarily result in the offence being more serious in nature’. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'.

62 Given the circumstances as disclosed in the agreed facts and the matters raised for consideration, it is clear that the task being undertaken by the employees at the time of the incident giving rise to the offence posed real risks to safety. The failures of the defendant exacerbated those risks to safety in a way that made the risk of injury foreseeable. It may be that the precise circumstances of the risk of injury were not readily foreseeable but that is not the requisite test. As became self evident, the failure to have in place an overall system of work designed to address the problem of the AFC chain jamming exposed the defendant's employees to a heightened risk to safety and a foreseeable risk of injury.

63 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

64 The defendant certainly responded in a most comprehensive manner following Mr Hammond's accident. As the facts disclose: