Robert William Regan v Perilya Broken Hill Limited [2011] NSWIRComm 13 (8 February 2011)

Last Updated: 15 March 2011

Industrial Relations Commission New South Wales

Case Title:	Robert William Regan v Perilya Broken Hill Limited
Medium Neutral Citation:	[2011] NSWIRComm 13
Hearing Date(s):	12 November 2010
Decision Date:	02 March 2011
Jurisdiction:
Before:	Backman J
Decision:	(1) Perilya Broken Hill Limited (the defendant) is convicted of the offence and fined $115,000 with a moiety to the prosecutor. (2) The defendant is to pay the prosecutor an amount of $5,974.80, being the reasonable costs of the investigation. (3) The defendant is to pay the reasonable costs of the prosecutor (such costs not to include the amount ordered to be paid in Order 2 above) as agreed or assessed.
Catchwords:	Occupational Health and Safety - offence under s 8(1) Occupational Health and Safety Act 2000 - plea of guilty - risk of falling from elevated walkway - systems in place prior to offence - other objective factors - subjective factors - orders - penalty imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 (NSW)
Cases Cited:	Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February [2010] HCA 1; 2010); 239 CLR 531 R v Stambolis [2006] NSWCCA 56; (2006) 160 A.Crim.R 510 Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189
Texts Cited:
Category:	Principal judgment
Parties:	Robert William Regan (Prosecutor) Perilya Broken Hill Limited (Defendant)
Representation
- Counsel:	V Hartstein (Prosecutor) B Hodgkinson SC (Defendant)
- Solicitors:	Crown Solicitor (Prosecutor) Sparke Helmore (Defendant)
File number(s):	IRC 1706 of 2009
Publication Restriction:

Judgment

1

Perilya Broken Hill Limited pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000 (OHS Act 2000). The charge, set out in an Amended Application for Order filed in Court on 29 October 2010, alleges that on 6 November 2007 at Perilya Southern Operations Mine in Broken Hill (the mine), the defendant, being an employer, "failed to ensure the health, safety and welfare at work of its employees in particular Ian Battams". Particulars of the risk and of the contraventions constituting the offence are set out in the charge as follows:

RISK

1. The risk was a risk of serious injury through falling more than 2 metres from a raised walkway at the level 23 pre-screens which was not guarded by functional guard rails.

PARTICULARS

2. The Defendant failed to ensure that the plant provided for use by employees at work was safe and without risks to health when properly used in that:

a. The walkway more than 2 metres above the ground provided by the defendant for its employees to use to clean the level 23 pre-screens was unsafe in that the guard rail along its edge was rusted and not functional; and

b. The Defendant failed to perform adequate maintenance on, including removal and replacement of corroded sections of, the guard rails on the raised walkway at the level 23 pre-screens.

3. The Defendant failed to ensure that systems of work and the working environment of the employees were safe and without risks to health in that the Defendant failed to ensure that in an atmosphere at the level 23 pre-screens which was conducive to the forming of rust there was:

(a)	adequate inspection; and

(b)	adequate testing.

4. The Defendant failed to provide such information, instruction and training as was necessary to ensure employees' health and safety at work in that the defendant failed to instruct or train its employees in the appropriate methods of inspecting or testing the structural integrity of the guard rails.

5. As a result of the said failures Ian Battams' safety was put at risk and he was seriously injured by a fall from the raised walkway at the level 23 pre-screens which caused him to suffer a broken right femur and foot, and a broken and dislocated finger on his left hand.

Background Facts

2

The mine is an underground silver lead and zinc mine which is owned, managed and operated by the defendant. The method of mining requires extensive development, drilling, blasting, loading, ore haulage and hoisting operations to bring the ore containing the minerals to the surface. On the surface, the ore is treated in a concentration plant to produce lead and zinc concentrations. The process involves a significant amount of water which is re-used. To facilitate its re-use the water goes through a filtering process which occurs on levels 23, 24, 25 and 26 in the mine. On level 23 a large proportion of the water is channelled through a number of boreholes and pipes where it is pumped to other levels of the mine including level 23 for the purposes of screening. The used water is piped to a fixed plant called pre-screens where it is filtered by a series of screens (six screens arranged into two sets of three screens) before it is delivered to level 24, the level below. On that level large pumps are used to recycle the water to the surface for use in pre-screening and underground mining. The level 23 pre-screen plant was commissioned in about 1991. The water being filtered through the pre-screens contains fine particles of minerals and cement, dissolved salts and chemical properties which encourage corrosion and degradation. Elevated walkways and handrails, in proximity to the pre-screens, are splashed by the water as a result of the filtering process. This results in mineral build-up on the handrails. The flow of water during the process also creates background noise. In general the atmosphere in the vicinity of the pre-screens on level 23 is damp, harsh and corrosive.

3

At the time of the offence Mr Battams was employed by the defendant as a permanent full-time mechanical tradesperson. He performed the role of a pump operator and trades assistant. Mr Battams was part of the underground maintenance team which looked after the fixed plant on levels 23 and 24. One of Mr Battams' duties which he performed alone was to clean the level 23 pre-screens.

4

Shortly after lunch on 6 November 2007, Mr Battams arrived at the pre-screen area on level 23. He inspected the area and satisfied himself that it was free from rock fall. He then proceeded to hose down the floor and the pre-screens. The pre-screens were accessed by means of the elevated walkway which was about 2.5 metres above floor level. The walkway was accessed by a ladder. At about 3pm, while hosing down the screens Mr Battams stumbled back and hit the guard rails on the walkway which promptly gave way. He attempted to grab the ladder but the steps of the ladder came away and he fell to the ground. Mr Battams called for help and shone his headlamp up to the drive. He was unable to attract attention so he put his helmet under his head to make himself as comfortable as possible. He was in considerable pain having sustained a broken right femur, foot and a broken and dislocated finger on his left hand. At 6:20pm the maintenance team became concerned about Mr Battams, and Shane Craker, a member of his team went searching for him. He found Mr Battams lying on the floor wet and shaking.

5	Because the telephone in the pre-screen area was not working Mr Craker called for help from the level 23 Plant telephone (located at the point of access to the shaft). Mr Battams was later taken to the hospital where he underwent surgery the following day on his femur and right foot.

Systems in place prior to the offence

6	There was some dispute during the sentence proceedings concerning the system and methodology of inspection of level 23 in place at the time of the offence.

7

The defendant utilised a maintenance database and work order system (known as "Maximo") for repair and maintenance work at the mine. As part of its maintenance programme, Maximo generated work duties on a weekly basis for maintenance work on the level 23 pre-screens. The work orders included the inspection of handrails and ladders but gave no instructions on how to conduct the inspections. Workers were required to fill out a workplace inspection sheet nominating additional work required and identifying hazards. An authorised Maximo operator generated a work order based on that information. The system relied on accurate reporting to determine maintenance action.

8	According to the agreed facts a number of work orders were generated by the Maximo system which required work to be done on the handrails of the elevated walkway on level 23. Information about the date and contents of some of those work orders is set out in the agreed facts as follows:

In July 2002 a work order (number 2218) was created for the replacing of the handrails at the 23 Level prescreen. This work was noted to be "corrective maintenance". The work order include: "status: CLOSE".

In or about August 2002 an order was placed with Grating Industries at Lonsdale for a handrail for the 23 Level prescreen. This work was noted to be "corrective maintenance". The work order includes: "status: CLOSE".

In March 2004 a work order (number 90352) was created in relation to a report of corrective maintenance to be done at the 23 Level prescreen, described as "backlog jobs that need to be done". The work plan details referred to:

(a) repair floor and handrails;

(b) repair pipe work.

The work order includes "status: CAN".

On 20 March 2005 a work order (number 153824) was created by Mr Battams in relation to corrective maintenance to be done at the 23 Level pre-screens, described as "replace mesh on walkways (rusted)". The work order includes: "status: COMP".

In April 2007 a work order (number 292480) was generated by Maximo as a job that needed to be done in relation to repair or replacement of the handrails and ladders because they were rusty. This was noted as "corrective maintenance" but it had not been done as at the date of the accident.

In April 2007 handrails in the mine at the 16 Level Fuel Bay were replaced.

A workplace inspection and audit of fixed plant of the 23 Level pre-screens was concluded in mid August 2007. No structural testing of the guard rail was conducted in accordance with AS 1657 in that inspection.

Regular visual inspections of the handrails and ladder ways at the 23 Level pre-screens took place between November 2006 and 6 November 2007. These inspections are recorded in completed work orders during this time. They were recorded as "preventative maintenance". The last visual inspection by a supervisor before 6 November 2007 was at the end of October and the guard rails reportedly looked "alright" then.

9	The agreed facts concludes in relation to these work orders that the nature of the inspections were inadequate for the environment in which the level 23 pre-screens were located.

10

According to Peter James Lean, the defendant's safety and training manager, he was told by another employee that the handrails which were installed on the level 23 elevated walkway in August 2002 were galvanised. It would appear however that some five years later the handrails had rusted as confirmed by the work order generated in April 2007. The deterioration over a four-year period may well have been the result of the corrosive environment in which the handrails were located. Whatever the cause it is significant for present purposes that the work order of April 2007 was not attended to by the defendant and the risk to Mr Battams as a result of the rusted handrails was unaddressed.

11	Much of the evidence adduced by the prosecutor during the sentence proceedings sought to deal with the system of inspection of the handrails in place prior to the offence.

12	According to Mr Battams his method of inspecting the handrails and ladders was visual. He explained in an interview:

Well I just look at them and make sure nothing's falling away from the or anything like that, and that's all I've ever done, is just looked at them. Like I said I've never got there and belted them in with a hammer or anything like that. Just like done an eye inspection.

13	Mr Battams also said he had not seen any procedure for the inspection of the items and there was no written instructions of which he was aware that set out how to inspect the handrails. He observed that the handrails were, "a bit rusty".

14

Noel Hanagan, the superintendent of mines services and a senior employee at the mine, also confined his inspection of the handrails and ladderways to a visual inspection. He said that during his last visual inspection which took place in mid to late 2007 the handrails had just been cleaned and, "looked in good condition". Chris Haines, a maintenance worker employed by the defendant as a fitter at the mine, confirmed in his interview that Mr Battams only conducted a visual inspection of the handrails and that the daily work order did not contain any information about how to inspect the items. It simply contained a direction to inspect them.

15

Rob Scargill, the acting executive manager of the mine at the time of the offence was asked questions as to why the corrosion of the guard rail on the elevated walkway in the vicinity of the pre-screens on level 23 was not detected or identified by the defendant's systems. The questions and Mr Scargill's responses are set out below:

Q73: From investigation, I have found that the mine has a maintenance system called MAXIMO, and HSE management system in place. In your opinion, how would the guard rails of the elevated platform of the pre-screens on the 23 level and the corrosion of those guard rails not be detected or identified by one or both of those systems?

A: In my opinion, both of those systems applied as intended would have picked up the corrosion issues associated with the hand rails. The incident raises the issue of how those systems were being applied in the pre-screen area. The MAXIMO system identified inspecting the hand rails and walk ways as a frequent task to be completed by a qualified tradesman and based on the evidence the necessary forms were filled out indicating these inspections had taken place but were not indicating the urgency for remedial action. The hazard presented by the corroding handrail should have been reported either on the work place inspection forms or via a hazard report. However, given the low frequency of visitors to the area, this relies on a small number of employees who work regularly in the area and they appear to have become complacent about the condition of their workplace and hazards that those conditions created.

Q75: That being the case, the work order for the washing and subsequent inspection of hand rails and ladder ways was given to Ian to complete. Is that correct?

A: As I understand the process, a tradesman is issued with the task of inspecting the hand rails. Ian's job is to clean the pre-screens and in that role as with any other role, he is required to assess the condition of his work place prior to commencing work. On the day of the incident, as I understand, the hand rails were inspected albeit only visually by a tradesman and not solely by Ian.

16	According to Mr Lean there were two processes in place for the inspection of level 23 at the time of the offence. In his affidavit, he said:

As at the date of the incident there were two processes in place requiring the inspection of 23 Level on a daily basis. The first was a workplace inspection, which was an operational check to ensure that the work environment was safe, and the second was the preventative maintenance work order, an engineering check designed to monitor infrastructure through inspection to identify and minimise degradation over time.

17

In my view other evidence led during the sentence proceedings does not support Mr Lean's account that there were two processes of inspection. Mr Scargill's account mentions a tradesperson performing an inspection of the handrails as well as Mr Battams' inspection of the level 23 plant, which included the handrails. Both methods of inspection, Mr Scargill said, were visual inspections only. According to Mr Battams his inspections were visual. Mr Hannigan conducted visual inspections only. The evidence therefore overwhelmingly supports the view that there was only one "process" of inspection which was a visual inspection, although the visual inspection was performed by different employees.

18	According to Mr Lean the daily inspection of the handrails on level 23 also included shaking the handrails or hitting them with an object. Evidence to the contrary outlined above clearly indicates that this was not the case. Rather, the inspection undertaken was confined to a visual inspection.

19

The prosecutor led evidence of what might constitute an adequate inspection from a mechanical engineer, Robert Fogg, principal consultant, Total Risk Solutions Pty Limited. According to Mr Fogg a typical daily inspection of handrails and ladders, involves a visual and aural inspection and a physical checking of the structures when used in a normal manner. Physical checking includes, "the grabbing hold of a handrail or access ladder". With regard to the appropriate method of testing of handrails installed in a workplace such as a mine, Mr Fogg said:

In my experience I have used the process of technical inspections of protective handrails as part of a structured system undertaken by trained personnel together with the use of an external specialist to provide advice on plant condition and to assess corrosion. A technical inspection is usually undertaken by an experienced structural engineer and comprises an assessment of the structural condition of the structure together with recommendations for remediation (if required).

The frequency of inspections is developed taking into consideration the environment in which the structures installed. The undertaking of a risk assessment is recommended to validate frequency, however three to five years for a non marine or dry environment and less for harsh environments (marine, salty, wet) would be considered typical. This lesser period would be reviewed with other reports as received such as the IMIU Ltd Risk Assessment Report and Corrosion Assessment.

20

Mr Fogg considered that the frequency of testing should be dictated by the working environment. Where equipment operates in corrosive environments such as an area of high humidity, Mr Fogg recommended that inspection by an experienced engineer would be expected to be undertaken every two to four years.

21

The evidence of the defendant's system of inspection of the handrails on level 23 reveals a number of serious deficiencies. The environment on that level was, according to the agreed facts, damp, harsh and corrosive. The system of inspection was visual only. The visual inspections revealed that the handrails were rusted and needed repair. The defendant was aware of this. Five years after the handrails had been repaired in 2002 a work order was generated directing that they be repaired and replaced because they were rusty. Notwithstanding the direction the handrails on level 23 were never repaired or replaced and were allowed to further deteriorate.

22

At the time of the offence the defendant also had in place at the mine a Health, Safety and Environment Management System called the HSE Management System. The system required all workers to conduct a daily workplace inspection upon first entry into the mine. Following the inspection workers filled out daily workplace inspection sheets. Safe Work Procedure (SWP) U410 provided instructions on how to conduct the workplace inspections. The instructions did not extend to the structural testing of the guardrails. There was no SWP or other written instruction on how to perform an inspection of the guard rails and ladders at the level 23 pre-screens.

23

Notwithstanding these deficiencies the defendant's HSE Management System appears to have been a genuine and largely successful attempt by it to address safety issues at the mine. According to Mr Lean when the defendant purchased the mine in 2002 it became apparent that there was a need to bring about significant cultural change involving its employees. A central element which sought to address this need was the development of the HSE Management System. The agreed facts conveniently summarise some of the key features of the system:

The HSE Management Standards consists of three key elements:

(a) HSE Management Standards - there are 14 HSE Standards;

(b) Significant Risk Protocols - there are 10 Significant Risk Protocols, and:

(c) Guidelines - there are 8 Guidelines.

The purpose of the HSE Management System is to "promote safe and environmentally responsible behaviour" right across the organisation.

The intent of "Standard 10 - Operate and Maintain" of the HSE Management System Standards is for "all facilities, plant, equipment and processes are operated, maintained, inspected and tested using systems and procedures that effectively manage HSE risks."

The HSE Management System identifies 10 Significant Risk Protocols including a "working at height" protocol. The HSE Management System also identifies other Significant Risks Protocols such as "working alone, in remote areas and overseas."

The HSE Management System requires safety meetings to be held as set out in the Perilya Mining Department's Safety and Health Management Plan. These include Panel start up meetings and pre-shift (safety) briefings to be conducted by the Shift Supervisors at the commencement of each shift. The content of the pre-shift briefings will include: safety/hazard/incident/accident information; employee task assignment; equipment condition and location; and fixed infrastructure status.

24	Mr Battams had also taken part in a number of training programmes during his employment at the mine. He received induction training in June 2002. He was trained in various aspects of underground mining. Some examples of this training are set out in the agreed facts as follows:

(a) On 6 January 2005 he received training in safe work procedure ( SWP ) U403 - underground general safety checks;

(b) On 1 July 2004 and then again on 12 March 2007, he received training in SWP U200 - Emergency Stations response; and

(c) On 26 June 2007 he received training in SWP U410 - Workplace Inspection.

25	These matters which serve to illustrate the defendant's genuine commitment to health and safety at the mine operate in mitigation of the objective seriousness of the offence.

Other objective factors

26

The risk to safety, in particular Mr Battams' safety, was both obvious and reasonably foreseeable. The elevated walkway which Mr Battams utilised on a daily basis when cleaning the pre-screens was 2.5 metres above ground level. It presented an obvious risk of falling. This risk was even more apparent when regard is had to the serious corrosion on the guardrails. The defendant tendered into evidence a report of Professor David Young, Emeritus Professor at the School of Mechanical Science and Engineering, the University of New South Wales. Professor Young's particular area of expertise is corrosion of metals. He was asked by the defendant to examine samples from the guard rails which collapsed causing Mr Battams to fall on 6 November 2007. He was also asked to examine a section of the ladderway which also collapsed when Mr Battams attempted unsuccessfully to arrest his fall. Professor Young examined portions cut from each sample provided, by optical microscopy. He concluded that the position of the guard rails revealed the remnants of a coating which could be identified as galvanising on the inner surface of the tube. He observed that the outer surfaces of the tube were heavily rusted. Cross sections of the ladderway side unit showed that the steel had rusted through completely leaving no metal visible. Professor Young concluded:

Both guardrail samples were obviously galvanized on their tube wall inner surfaces. The outer surfaces of these samples were so heavily corroded that the galvanized coating could no longer be seen. However, the galvanizing process involves passing the tube through a bath of molten zinc. It can therefore be concluded that the tubes were initially galvanized on both the inner and outer surfaces.

The complete corrosion of the flat ladderway siderail would have destroyed any galvanizing initially present. Thus it is not possible to conclude whether or not this sample was originally galvanized.

27

The defendant was aware some months before the incident of the corroded guard rails. A work order had been generated by the Maximo system in April 2007 directing that the guard rails and ladders be repaired or replaced "because they were rusty." At the time of the offence this had not been attended to at least in relation to the prescreen area on level 23.

28

The defendant was also aware of the risk of corrosion of structural steel in wet and humid conditions typifying the conditions prevailing in the level 23 pre-screen area. In August 2006 a risk assessment had been completed in relation to above ground mining operations. It identified corrosion and lack of maintenance in steel structures as a significant issue which needed to be addressed at the mine.

29	Simple, straightforward remedial steps could have been taken by the defendant to obviate the risk presented by the corroded guard rails and ladderway at the level 23 pre-screens. These steps have been identified by the prosecutor in written submissions. They include:

(a) The corroded guardrail could have been removed and replaced - a work order had been created for the replacement of the guardrail and ladders at the level 23 pre-screens in April 2007, but as at 6 November 2007 no such work had been carried out;

(b) The guardrail could have been inspected adequately;

(c) The guardrail could have been tested adequately;

(d) The defendant's employees could have been informed, instructed and trained in the adequate inspection and testing of guardrails.

30	The very serious injuries suffered by Mr Battams as a result of the fall constitute a manifestation of the risk to safety as particularised in the charge.

31

Both specific and general deterrence must also be taken into account on sentence. The defendant operates in a high-risk industry. In Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 Boland J, President, observed that in 2001 the industry with the highest incidence of workplace injuries was mining: at [42]. The defendant is also a significant employer in the mining industry. It currently employs some 398 personnel. Following the incident involving Mr Battams the defendant has endeavoured to minimise the risk to safety associated with the deterioration or corrosion of handrails in particular. The measures taken by the defendant in this regard will be dealt with in more detail in this judgment, as they are relevant to the defendant's post-incident safety initiatives which operate in mitigation of the penalty to be imposed. The measures, although genuinely taken with a view to ensuring safety are not, of themselves sufficient to dispense with the need to apply the principle of specific deterrence. The fact that the defendant employs a large workforce in a dangerous industry compels its application.

32	The defendant has a prior conviction and therefore faces a maximum penalty of $825,000.

Subjective factors

33

According to the prosecutor the defendant entered a plea of guilty to the amended charge after the fifth directions hearing. According to the court file the matter was on for plea/directions before Staff J on 17 December 2009, 19 February 2010, 22 March 2010, 19 April 2010, 15 June 2010, 29 June 2010, 10 August 2010 and 31 August 2010. It was not until 15 September 2010 that the defendant entered a plea of guilty to the amended charge. The delay appears to have arisen in part because of the defendant's application to consider the High Court judgment in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February [2010] HCA 1; 2010); 239 CLR 531. This was followed by investigations undertaken by the defendant and representations made by way of a letter to the prosecutor followed by further exchanges of correspondence between the parties. During this period, Staff J expressed some concern that a significant period of time had elapsed. His Honour emphasised the delay on at least three occasions and on 31 August 2010 he advised the parties that if an agreed position was not reached the Court would enter a plea of not guilty on the next occasion.

34

The prosecutor contended, apparently based on the number of directions hearings in this matter, that the discount to be awarded to the defendant reflecting the utilitarian value of the plea should be less than 20 per cent. According to the defendant, it pleaded guilty to an amended charge that was significantly different from the original charge. The defendant also sought to place reliance on the fact that, "this case has never been set down for hearing". These matters according to the defendant would justify a discount for the utilitarian value of the plea of 20 per cent.

35	The Court was not invited to undertake a comparison between the original charge and the amended charge to which the defendant ultimately entered a plea of guilty. The defendant did not attempt to identify any of the "differences" between the two charges.

36

In R v Stambolis [2006] NSWCCA 56; (2006) 160 A.Crim.R 510, Howie J considered whether pleas of guilty could be characterised as early pleas justifying a discount of 25 per cent. In that case, there was a delay of eight months between the accused person's arrest and the entering of the plea of guilty. In the unreported judgment at [11], (the reported judgment contains a typographical error omitting the word "not" from the third last line), his Honour said:

Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plea guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity.

37	Given that there has been some delay before the plea of guilty was entered in this matter without an appropriate explanation, I assess the utilitarian value of the plea at 20 per cent.

38

The prosecutor submitted that the defendant, through Mr Lean, had attempted to assert that one of its employees was responsible for the failure to replace or repair the corroded guard rail. This, according to the prosecutor, exhibited a lack of contrition. In support of the submission the prosecutor relied on two paragraphs from Mr Lean's affidavit ([42] and [43]) in which he deposed that the defendant relied upon its tradespeople for the assessment of the structural integrity of the handrails. This, of itself, however, does not indicate a lack of contrition on the part of the defendant. More particularly, it does not amount, in its terms, to an attempt by the defendant to deflect its statutory responsibilities to its employees. The defendant has admitted, by its plea of guilty, that it failed to provide necessary information, instruction and training to its employees on appropriate methods of inspecting or testing the structural integrity of the guard rails.

39	On the issue of contrition, the defendant authorised Mr Lean to make the following statement on its behalf to the Court:

Perilya Broken Hill accepts that it failed to provide its employees including Mr Ian Battams with appropriate information, instruction and training for the inspection and testing of handrails.

This failure meant that Mr Battams was not in a position to properly assess the safety of his workplace on 23 Level.

Since Mr Battams incident Perilya Broken Hill has investigated best practice for the inspection and testing of handrails. Perilya Broken Hill identified that there was no defined testing equipment or methodology available. As a result Perilya Broken Hill has developed a process and equipment which delivers the requirements of the Australian Standards for the testing of handrails and stanchions. Perilya Broken Hill is in the process of sharing this learning.

Perilya Broken Hill deeply regrets its breach of the Occupational Health and Safety Act and the injuries sustained by Mr Battams as a result of this breach.

40	The statement, which was unchallenged, meets with the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (CSPA). It is evidence of contrition expressed by the defendant and will be taken into account in mitigation of penalty.

41	The defendant has a previous conviction and is disentitled therefore to leniency normally extended to an offender who is not adversely recorded.

42	The defendant also co-operated with the authorities during the course of the investigation into the offence.

43

After the incident, the defendant directed John Andrew Braes, its surface maintenance superintendent, to investigate and identify a system which would allow it to test guard rails in accordance with Australian Standard 1657-1992 Fixed platforms, walkways, stairways and ladders - Design construction and installation (the Standard). One reason for this, according to Mr Braes, was that the defendant's current methodology for the inspection and testing of guard rails (identified by him as "visual, aural and hitting") was inadequate because the degree of corrosion was not able to be determined if the corrosion was occurring from the inside.

44

The defendant engaged Rosetta Stone Operations Pty Ltd, an engineering design firm, to design a handrail tester that would comply with the requirements of the Standard. Rosetta Stone drafted design drawings and the defendant commissioned Nejaim's Steel Supplies to manufacture a prototype frame. The defendant purchased hydraulic testing equipment and assembled it to the frame. Rosetta Stone was engaged to develop a chart which would allow operators to operate the handrail tester in accordance with the Standard. Shortly after, a pilot programme for the handrail tester was commenced for the defendant's surface operations. The programme ran for several months and test results were recorded and submitted to the defendant for review. A number of issues were identified during the period and various adjustments were made. Upon completion of the pilot programme, the handrail tester was introduced to the underground environment and two handrail testers are currently in use at the mine, both on the surface and underground. The following methodology is employed during the testing process:

(1) the location to be tested is identified and then each set of handrails (a set being the length of handrail between two stanchions) is numbered consecutively to assist recording of data;

(2) each stanchion is tested by applying a horizontal pressure equivalent to 550 Newtons of force for a duration of 60 seconds. If a deflection is recorded, the stanchion is replaced (AS 1657 does not provide a tolerance for deflection of stanchions);

(3) to test the set of handrails, the length of the handrail between the two stanchions is measured. The chart is then used to identify the appropriate pressure (force) that was required to be applied to the handrail both vertically and horizontally;

(4) a measurement is also taken of any pre-existing distance (deflection) from vertical in between the Handrail Tester and the handrail prior to the application of pressure, this is required to determine whether there is any deflection remaining after the test is conducted;

(5) the Handrail Tester is then used to apply the required pressure to the handrail and that pressure is held for 60 seconds, with the operator using a stopwatch to record the time;

(6) the pressure is then released and a new measurement is taken of the distance between the handrail and the Handrail Tester. Any difference between the original measurement and this measurement is recorded as "deflection". If the deflection is greater than the allowed amount according to the chart, the handrail is determined to be no longer compliant with AS 1657. The area is then bunted off, a work order is generated and the handrails are replaced.

45	The defendant entered the handrail tester in the NSW Minerals Industry 2010 Regional Occupational Health and Safety Forum Innovations Awards and on 4 November 2010 it was named as the winner of the award for its device, called the Handrail and Stanchion Testing Device.

46	This achievement illustrates the defendant's commitment and dedication to ensuring safety at the mine. It will be taken into account, together with the other subjective and objective factors in mitigation of penalty.

47

The defendant also instituted a number of other post-incident improvements specifically to the plant on Level 23 which are designed to improve the environment and minimise the effects of the process water. The defendant's systems of underground communication has also been improved since the incident. The improvements are set out in Mr Lean's affidavit and will also be taken into account in mitigation of penalty.

Orders

48	The Court makes the following orders:

(1) Perilya Broken Hill Limited (the defendant) is convicted of the offence and fined $115,000 with a moiety to the prosecutor.

(2) The defendant is to pay the prosecutor an amount of $5,974.80, being the reasonable costs of the investigation.

(3) The defendant is to pay the reasonable costs of the prosecutor (such costs not to include the amount ordered to be paid in Order 2 above) as agreed or assessed.



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