Record of Investigation into death

In the matter of the
Coroners Act 1995
Coroners rule

Form 4

I, Rodney Eric Chandler, Coroner, having investigated the death of

Adrian Brian HAYES

Findings, Recommendations and Comments following an inquest held in Launceston on 28, 29, 30 September, 1, 2 & 5 October and 3 November 2009.

Preamble:

Adrian Brian Hayes ("Mr Hayes") died on 30 October 2000 at Fingal in Tasmania whilst in the employ of the Cornwall Coal Company N.L. ("Cornwall Coal"). On 12 November 2007 Chief Magistrate A G Shott, pursuant to s24(1)(h) of the Coroner’s Act 1995 ("the Act"), directed that I hold an inquest into Mr Hayes’ death. That inquest has now been held and these are my findings, recommendations and comments arising from it. They supplement the previous findings made in chambers by Coroner D J Jones and dated 28 June 2002.

Introduction:

1) Cornwall Coal is a coal mining company operating at Fingal in North East Tasmania. In October 2000 it was extracting coal from a mine known as Blackwood No. 3. That mine was located on the southern slope of Mt Nicholas adjacent to the township of Cornwall and approximately 18.5 kms from Fingal.

2) Cornwall Coal’s Mine Manager was Mr Bryn Morall. His immediate predecessor was Mr Bob Mellows. Mr Terry Miller was the mines’ Production Co-Coordinator. The mine deputies were Mr Shane Gavaghan and Mr Kim Howes.

3) Mr Hayes commenced working for Cornwall Coal on 17 August 1998. Since August 2000 he had been classified as a Level 4 miner.

4) On 30 October 2000 Mr Hayes was a member of a mining crew working the day shift in the Blackwood No. 3 mine. The other members of the crew were Shaun Trigg, Damon Viney, David Hoskinson and Paul Mason. Mr Gavaghan was the crew’s shift boss.

The Death

At about 1.30 pm on Monday 30 October 2000 Mr Hayes was in the course of disconnecting some air and water hoses located on the left hand side of a continuous miner when he was struck by a piece of falling mud stone causing him severe and fatal head injuries. A post-mortem examination was conducted the following day by Forensic Pathologist, Dr G R H Kelsal. He has reported that in his opinion the cause of Mr Hayes’ death was severe head injuries sustained in a mining accident. He also reports that there were no signs of any underlying disease which may account for the accident.

Pillar Extraction

Cornwall Coal utilised a mining method known as pillar extraction in its operation at Cornwall. To enable an understanding of the circumstances of Mr Hayes’ death it’s necessary that I provide a general description of this method including its associated terminology. This information is contained in a report prepared for this inquest by Professor J M Galvin. Professor Galvin is a highly qualified and experienced mining engineer. Much of his career has focussed on coal mining. The relevant portions of Professor Galvin’s report follows. (The emphasis to some of the terms/phrases is mine).

Sequence Plan

At the time of Mr Hayes’ death Blackwood No. 3 mine was being mined in accord with a sequence plan prepared by Mr Miller and dated 11 October 2000. That plan is attached.

The encircled numbering 1 to 20 denotes the order or sequence in which splits are to be driven into the pillars and the coal extracted. The arrows with each of these numbers indicates the direction of mining. The sequential numbering 117 to 121 shown at the foot of the diagram identifies the cut throughs which are the roadways running virtually vertically on the plan. The near horizontal roadways shown on the plan are the bords. In the evidence they were described A, B, C and D bords with A bord being near the foot of the plan and running parallel with sequence 14. The evidence established that Mr Hayes’ death occurred when his crew was mining the split shown as sequence 12 and located between cut throughs 120 and 121.

Previous Incidents

Pillar extraction commenced in Blackwood No. 3 mine on 11 December 1999 but mining was suspended on 19 May 2000. It resumed again on 3 August 2000. (It was during the period of suspended mining that Mr Morall replaced Mr Mellows). From 14 to 22 August 2000 extraction took place between B and D bords in an area adjacent to previous workings. Records show that there was a solid sandstone roof in this area. In the following two months there were a number of incidents involving roof fall occurring in Blackwood No. 3 mine. The evidence, including the contents of the Cornwall Coal shift reports, enables me to provide the following detail of ground conditions during this period including incidents of roof fall which were associated with worker injury:

1) On 23 August the mining of sequence 5 was commenced. It was a split of the pillar between A and B bords north of cut through 121. The afternoon shift report records, "very heavy mud stone at split in A." Mining of sequence 6 also commenced that day. It was a split in the pillar to the west of A bord north of cut through 122.

2) On 24 August mining of sequence 6 resumed. The day shift report describes mining conditions as "heavy mud stone roof with lots of slips." That afternoon’s report describes these conditions as "very heavy broken mud stone roof." On that day a roof fall occurred causing a roof bolt to strike Mr L Hayes and injuring his left leg. That same day Mr Hayes completed a Notice of Injury form which was co-signed by his supervisor. He described the accident in these terms, "Piece of roof fell out. Six inch bolt came down with it. Hit top of my leg." The form indicates that the injury was treated with an icepack and that time off work was not expected. The incident was not investigated.

3) On 31 August Mr John Walker was working on the afternoon shift upon sequence 11 in the pillar between A and B bords north of cut through 122. The shift report describes the mining conditions in these terms, "Sandstone roof. Heavy in lift offs." Mr Walker suffered an injury to his right shoulder when struck by a coal rib fall while driving the shuttle car. He attended at the St Helens District Hospital for treatment. Four days after the event he signed a Notice of Injury which was co-signed by Mr Howe, his supervisor, and submitted to management. Although when interviewed Mr Morall asserted that this incident was investigated, there is no evidence of such investigation nor particularly that it was the catalyst for a risk assessment. It is noted that the shift report includes this comment upon Mr Walker’s injury: "Seeing Doctor at St Helens-no one else wanted to know about it."

4) On the afternoon shift of 3 September Mr Gavaghan was the shift boss. His crew was splitting the pillar between B and C bords to the north of cut through 121. Mining conditions were particularly difficult. In his report Mr Gavaghan records: "Ribs crushing very badly / goaf very heavy" and "There has also been a lot of movement on fenders, stooks from A bord across to C bord." The roof was reported to be both sandstone and mudstone. On that shift two persons were injured. Mr Damon Viney sustained injuries to his left shoulder and right calf when "rib fell out letting piece of mudstone fall out." On the same day Mr Jamie Viney sustained injury to his left leg in an incident described in these terms, "Rib fall causing left leg to be pinned against miner." Both incidents were the subject of Notice of Injury reports submitted to management. Neither of them were investigated nor did either initiate a risk assessment. It is noted that these incidents occurred in an area one pillar to the north and one pillar to the west of the location of the roof fall involving Mr Hayes.

5) It needs to be noted that for the two week period from 16 September the mine was closed for its annual shutdown.

6) On 3 October the crew was mining sequence 23 and lifting the pillars either side of bord B north of cut through 122. Conditions during the day shift were described as; "Goaf getting very heavy. Ribs crushing badly." The afternoon shift report describes conditions as; "Goaf very heavy - ribs crushing and dangerous." In the afternoon Mr Rex Floyd suffered injury to his legs from "Rib busting out because of roof - floor pressure." He attended St Helens Hospital for treatment. There is no evidence that management undertook an investigation of this incident although Mr Morall, when questioned as part of the Workplace Standards’ investigation, did assert that it was investigated.

7) On 4 October Mr S Trigg was injured when "Hit in lower left leg with rib fall." This occurred during day shift and Mr Gavaghan was the shift boss. He describes mining conditions as, "Good goaf fall fell overnight / seq 24 ribs crushing slightly, roof ok. Single wheeling due to ground shift." In his shift report under "Mining Problems" Mr Gavaghan has written; "Paged management on seq changes to plan due to changes of movement in roof and sides of proposed mining sequences. Planning procedures want addressing." It needs to be observed that Mr Trigg’s injury occurred when the crew was mining sequence 24 being the lift of the pillar between A and B bord to the north of cut through 121. This pillar was located immediately to the north of the site of the incident involving Mr Hayes and adjacent to sequence 23 where Mr Floyd had been injured the previous day. Mr Trigg’s injury was the subject of a Notice of Injury form submitted to management but the incident was not investigated nor was it the subject of a risk assessment.

These general observations can be made upon the incidents which I have set out above:

• Blackwood No. 3 mine was mined for four weeks in the period between 23 August and 4 October 2000. In that period six miners suffered injury in six separate incidents involving roof fall.
• With the exception of the incident on 31 August, all others occurred when mining in areas of mudstone.
• All incidents occurred in the area west of C bord and north of cut through 121. Most notably the incident on 4 October occurred during mining of sequence 24 between A and B bord to the north of cut through 121. This location was adjacent to sequence 23 where Mr Floyd had been injured the previous day and was immediately north of the position where Mr Hayes sustained his fatal injuries.
• All the incidents causing injury were notified to Cornwall Coal, either in the shift reports and/or by Notice of Injury, but there is not any evidence that any one of them was the subject of investigation. Critically, none generated a risk assessment.
• The incidents occurring after 23 August demonstrated a deterioration in mining conditions associated with an identifiable area of mudstone yet there is not any evidence that Cornwall Coal gave any consideration to this when drawing the sequencing plan dated 11 October 2000. (see attached plan)

It is pertinent to observe that s47 of the Workplace Health & Safety Act 1995 obligates a person having control or management of a workplace by the quickest available means to notify an inspector if a person is killed or suffers serious bodily injury or illness at a workplace or if a dangerous incident occurs as a result of which a person could have been killed or could have suffered serious bodily injury or illness. Cornwall Coal did not report any of the above incidents to WST. Had it done so, it was the evidence of Mr Sears, the Chief Inspector of Mines, that he may have directed an inspector to attend the mine to investigate.

Events Preceding the Fatality

For the week beginning Monday 23 October 2000 mining proceeded in accord with the sequence shown in the attached plan. That day began with the lifting of the pillar in sequence 7 between C & B bords north of cut through 120. However, extraction had to be abandoned because the drive had "opened up over the weekend." In that morning’s shift report Mr Gavaghan states, "very heavy pulled out and went to C drive. This drive also has nasty crack about half way up drive to goaf/intersection also very heavy. Mining then moved to sequence 8 with Mr Howe reporting conditions that afternoon in these terms: "Heavy sandstone roof. Goaf letting go throughout shift. (Fell 7.30). Lost time waiting for goaf to settle." The mining of sequence 8 was successfully completed. On the following day Mr Gavaghan’s crew commenced sequence 9. His shift report states, "Patchy heavy mudstone to good sandstone." In the afternoon shift report Mr Howe comments: "Patchy sandstone-mudstone. Ribs crushing intersections where holed very heavy - a lot of movement in section towards E.O.S." It was Mr Gavaghan’s evidence that the mining in this area on this day indicated that the mining operation was moving from an area of sandstone into an identifiable area of mudstone.

Mr Gavaghan was again the crew boss on the morning shift of 25 October. Sequences 10 and 11 were being mined that day. Mr Gavaghan states in the shift report, "Rebolting loose mudstone in split." For the afternoon shift Mr Howe reported, "Heavy sandstone-mudstone. Intersection of split moving part of shift. Forced us to move out at 7.30 pm. Goaf fell 8.15. Very heavy-broken top half B bord." It is noted that this is the second occasion in three days that it was necessary for the mining crew to be withdrawn and the sequence abandoned because of the heavy mining conditions. It needs also to be noted that despite these matters being recorded in the shift reports Cornwall Coal did not take any steps to investigate the circumstances which led to these withdrawals nor was a risk assessment initiated.

On the morning of 26 October, (it was a Thursday) Mr Gavaghan’s crew resumed mining in sequence 11. Conditions were particularly difficult, the shift report recording; "Very heavy in drive in B used two B.L.S to shift as much as we could and leaving large stooks between lifts pushed out and started splitting." After being "pushed out," Mr Gavaghan moved his crew to sequence 12. At this point, Mr Gavaghan telephoned Mr Miller and asked to speak to Mr Morall. The transcript records Mr Gavaghan’s account of the telephone conversation in these terms:

It is not clear from the evidence whether Mr Miller reported this conversation to Mr Morall prior to the Monday morning.

On the afternoon shift of that Thursday Mr Howe’s crew worked in sequence 12. The shift report records, "Heavy mudstone roof." As I have observed previously, sequence 12 involved the pillar immediately adjacent to that pillar where Mr Floyd and Mr Trigg were respectively injured on 3 and 4 October 2000.

No mining was undertaken on Friday 27 October, the work on that day being confined to some maintenance tasks.

At 6.30 am on Monday 30 October Mr Gavaghan carried out a pre-shift inspection of the split at sequence 12. It was Mr Gavaghan’s evidence that conditions at this time, unexpectedly, were "Quiet as a bloody church mouse" and "Relatively good." Mr Gavaghan then returned to the surface intending to have his meeting with Mr Morall. By this time all his crew had arrived save for Mr Mason who had telephoned to say he was late because he had slept in. Mr Gavaghan was satisfied that conditions "Looked fine enough to start production," so he directed the four crew members to enter the mine. He then proceeded to the office where both Mr Morall and Mr Miller were present.

According to Mr Gavaghan the meeting began with Mr Morall asking, "You had a rough week last week" to which he replied "Rough…….been running like rabbits." Mr Gavaghan was concerned that the difficult conditions being experienced in Blackwood No. 3 may have been due to the configuration of Blackwood No. 1 mine which lay above it. According to him the conversation then proceeded as follows:

This account was largely confirmed by both Mr Morall and Mr Miller.

The meeting ended at about 7.30am. By this time Mr Mason had arrived and he, along with Mr Gavaghan proceeded to join the rest of the crew underground. However, immediately before leaving Mr Gavaghan said to Mr Morall, "Do you want a lift under?" but Mr Morall rejected the offer saying that "I’ll be in later on this afternoon." In his evidence Mr Gavaghan described his response to Mr Morall’s rejection in this exchange:

Immediately after the meeting Mr Morall and Mr Miller travelled to Fingal to try and locate any plans, reports or other material relating to Blackwood No. 1 mine which may have explained the difficult conditions being experienced in Blackwood No. 3. No helpful information was located. At this point Mr Morall acknowledged that his enquiries had been inconclusive and he did not "have a clue" what was causing the difficult mining conditions.

The precise time that Mr Morall and Mr Miller returned to the mine is not clear on the evidence. However, it is clear that they were at the mine site at the time of Mr Hayes’ fatal injury and that Mr Morall was not at this time in the course of either directing that mining cease or preparing to make an underground inspection himself.

It’s pertinent at this point for me to record this exchange between counsel-assisting and Mr Morrall;

It was Mr Miller’s evidence that on the morning of 30 October there was not any discussion between him and Mr Morrall upon either the suspension of mining or the moving of Mr Gavaghan’s crew to another area of the mine even though there was concern over the difficult mining conditions and "we did not know what was going on."

Mining of sequence 12 continued to about 9.30am when the crew stopped for breakfast. They resumed working again at about 10.15am. In his statement provided for the investigation Mr Gavaghan described the conditions at this time in these terms: "Conditions were heavy again. There were bits of rock coming away from the walls all the time. There were pieces of rock falling away. It was the heaviest conditions I’ve seen for a long time. It crossed my mind to pull out, but I thought the manager was going to come down for a look." Other crew members also described the difficult conditions in their statements. It was Mr Mason’s recollection that "About midday the conditions started to deteriorate. The ribs in the wall on the right, bits of coal started to fall off. They were fairly large…..The left hand side was still fairly solid" whilst Mr Hoskinson recorded, "When we started work the conditions were fairly good. As the day went on the conditions seemed to get worse. The ribs started to crush and were falling off the walls. The left hand side of the roof wasn’t too bad but the right hand side was smashing out."

At about 1.30pm Mr Hayes and Mr Mason were bolting the roof. Mr Hayes was at the continuous miner disconnecting the air and water hoses when a section of mudstone was dislodged from near the roof on the left hand side of the split and fell on Mr Hayes striking him on the head. It was immediately obvious to his work colleagues that he had suffered fatal injuries.

Mine Management and Associated Issues

Mr Mellows was Cornwall Coal’s mine manager from 1975 retiring on 15 July 2000. Mr Morall arrived at Cornwall Coal in early July and there was an approximate two week handover period during which Mr Mellows and Mr Morall "would spend the total time together, doing everything together." At this time mining was taking place in Blackwood No. 2 mine (mining in Blackwood No. 3 did not resume until 3 August) and Mr Morall would accompany Mr Mellows on his daily underground visits to that mine. It needs to be noted that Mr Mellows acknowledged that all his knowledge of the mine and its workings gained during his lengthy service was not written down or recorded but instead was largely retained in his head.

Mr Mellows’ management style was "hands on." He:

• Preferred to manage without an undermanager and was prepared to absorb the usual duties of an undermanager into his own mine manager role;
• Drew all the mine’s plans and sequences;
• Personally monitored mining progress and varied the plans as required;
• Would go underground each day when coal was being extracted to inspect the work site and to communicate with the deputy and crew members;
• Would on occasions go underground more than once a day if mining conditions were causing him concern or a deputy had reported concerns;
• Would be present each morning to meet with the day shift before it went underground and again would be present at the changeover to the afternoon shift. He made a point of this "so I was available for them to raise any concerns they may have.,"
• On a rare day when he had to be absent from the mine would "change what was going on so I had no concerns." Mr Mellows could not recall any instance when he was absent from the mine for an entire week; and
• Was in the practice of reading and signing each morning the shift report for the previous afternoon shift and each afternoon the shift report for that morning’s shift. If the report indicated that an injury had been suffered it was his practice to speak to the deputy as soon as he could and if necessary to attend underground to inspect the site where the injury was sustained. The incident would later be discussed at a safety meeting.

Before joining Cornwall Coal Mr Morall had had extensive coal mining experience in the United Kingdom, New South Wales and Queensland. His role at Cornwall Coal included responsibility for both production and marketing. Prior to Mr Morall’s arrival the marketing role was undertaken by a Mr McGiveron, but he resigned at the same time as Mr Mellows.

In his previous employments Mr Morall had worked with an undermanager. After Mr Mellows left Mr Morall initiated steps for an undermanager to be appointed at Cornwall Coal but this had not been finalised by the time of Mr Hayes’ death. In the meantime Mr Morall shared with Mr Miller the tasks ordinarily carried out by an undermanager including underground inspections. Mr Morall says this in his statement concerning those inspections: "…I would generally go underground at least 3 times a week to audit production processes. However, at times this audit process did vary because of outside influences. By that I mean that the mine’s owners Cement Australia required me to complete other corporate responsibilities. I recall that at times this meant that I may have only got underground about once a week however, this was not a regular occurrence. Having said that, if I did not get underground at least 3 times a week I would rely on the mine deputies and Terry Miller who was my 2IC for information on how the mining was progressing."

Underground crew members had varying recollections of the regularity of Mr Morall’s underground visits, Mr Hoskinson describing them as being "not as frequent (as Mr Mellows) but quite often…," Mr Trigg said "not as often as he should have,’ Mr Damon Viney stated them to be "occasional" and Mr Mason described them as "spasmodic."

Because it was not Mr Morall’s daily practice to visit underground he was dependant for information upon ground conditions upon advice received from Mr Miller and the deputies plus the contents of the shift reports. He said in evidence that it was his ordinary practice to read and sign the shift reports the following day but acknowledged that this could not happen when he was away and that there may have been some occasions when he read a report but overlooked signing it. A review of the reports for the period August to October 2000 shows multiple occasions when reports for greater than four days were all signed on the same day including three instances when reports were dated on one day for periods covering seven days or more.

It was Mr Morall’s evidence that his marketing responsibilities ensured that he was absent from the mine for at least one day per week, (he worked a four day week, Monday to Friday). In addition, each month he had to attend a board meeting which required him to be away for two days if it was held interstate. In his interview with Workplace Standards Tasmania Mr Morall said that in his absence a management team comprising Mr Miller, Mr Cox and the deputies were in charge of the mine. At these times Mr Morall claimed that he remained contactable via mobile ‘phone.

There is conflicting evidence on whether Mr Miller held a mine deputy certificate. His principal qualifications were as an electrician. His only experience at the coal face was as a tradesman and not as a miner. He clearly had less coal mining experience than either of the deputies, namely Mr Gavaghan and Mr Howe. He did not have any geotechnical qualifications. Nevertheless, Mr Miller was, as indicated above, a member of the management team and had considerable responsibilities bestowed upon him by Mr Morall when he became mine manager. He drew up the sequencing plans to be approved by Mr Morall, he was expected to be present at shift changeovers and he was the conduit responsible for conveying mining and production information to Mr Morall during his absences. Although the evidence suggests that Mr Miller was, for all intents and purposes, the person in charge of the mine while Mr Morall was away he had not been specifically assigned this responsibility by Mr Morall and he did not believe himself that he bore this role. It was Mr Miller’s evidence that he was "not sure" who had the responsibility to make decisions in cases of emergency when Mr Morall was absent and could not be contacted by ‘phone.

On Thursday 19 October 2000 Mr Morall left Tasmania to attend an interstate coal mine rescue competition. He remained away to attend a three day company strategy conference and did not return to Tasmania until Thursday 26 October arriving in Launceston at about 11.00am. He did not attend at the mine that afternoon and drove to Hobart. He was not required to work on the Friday and spent that day and the weekend at the Royal Agricultural Show in Hobart. He returned to work on the morning of Mr Hayes’ death. Mr Miller was unable to recall whether he had any contact with Mr Morall during his 11 day absence. It was Mr Morall’s evidence that Mr Miller did not contact him on Thursday 26 October and that he did not learn that Mr Gavaghan’s crew had been "pushed out" while mining sequence 11 until he arrived at the mine on the Monday.

Risk and its Management

For 25 years, Mr Mellows had been the mine manager and the management of risk associated with the mining operations was in large measure dependant upon his knowledge, experience and "hands on" management style.

In the early 1990’s a number of coal mining fatalities in New South Wales led to the production of the New South Wales Pillar Extraction Manual ("the Manual"). Professor Galvin played a significant role in its compilation. It sought to apply the most up-to-date principles of rock mechanics to the design of pillar extraction procedures and practices. Further, it stipulated that a risk management approach had to be adopted to mine design and strata management. In 2000 the Manual, with updates, was being utilised in New South Wales.

It was Professor Galvin’s evidence that the conditions presenting in Blackwood No. 3 in October 2000 would have been managed differently if the Manual had been followed. Several matters were relevant to this view.

Pre Splitting of Pillars

The evidence indicates that approximately two months before the fatality a pillar was pre split as sequence 5 between A and B bords and between cut throughs 121 and 122. This location is north of and adjacent to the pillar where the fatal event took place. Relevantly, the Manual provides:

Compliance with the Manual would have required the pre splitting of the pillar at sequence 5 to be a factor to be borne in mind in assessing the integrity of the strata in the area of sequence 5 including that area where the fatality occurred. However, this was not a factor taken into account at any time by Cornwall Coal.

Standing time during excavation

The Manual states firstly: "It is vital to the whole understanding and application of geotechnical principles in underground coal mining to recognise the importance of time," and secondly: "Partially extracted fenders should not be left standing for extended periods. Fenders should be completely extracted during the last shift before a weekend or other extended non-production period." On the morning of Thursday 26 October the mining of sequence 12 commenced after Mr Gavaghan’s crew were "pushed out" of sequence 11. The lift of that pillar was not completed on that day and it did not resume until the following Monday. This was in direct conflict with the Manual.

Pre mining survey

There is an emphasis in the Manual on data collection prior to mining. It states:

As has been indicated above, the mining in Blackwood No. 3 was being undertaken in an area below the old workings of Blackwood No. 1 mine. Clearly, those old workings constituted part of the environment within which the mining in Blackwood No. 3 was taking place. However, there is no evidence that any consideration was given to the upper workings in the planning of the excavation to be undertaken in Blackwood No. 3. Mr Mellows had some knowledge of these workings but he had left the mine by July 2000. He acknowledged that no attempt had been made by him to align the lower workings to be undertaken in Blackwood No. 3 with those workings carried out in Blackwood No. 1. Further, it is apparent from the conversation involving Mr Morall, Mr Miller and Mr Gavaghan at their meeting on the morning of 30 October 2000 that none of these persons had any detailed knowledge of the workings in the upper mine and its potential relationship to the excavation being undertaken below. The evidence is, as I have already noted, that at that meeting a plan of Blackwood No. 1 was produced and overlaid on a plan of the mine below but the relationship between the workings of the two mines was inconclusive. This led to the decision made by Mr Morall for him and Mr Miller to seek other plans at Fingal. That search was unsuccessful. The plan of Blackwood No. 1 which was produced at the inquest led to these comments being made by Professor Galvin:

Inspections and their Frequency

The Manual, by reference to the New South Wales Regulations, provides for the inspection frequency of Deputies, Undermanagers and Managers. It recommends that undermanagers inspect workings each 24 hours during ongoing pillar extraction. The purpose of inspections by both deputies and undermanagers is described in these terms:

"Deputies

The prime purpose for control by face deputies is to monitor and observe extraction operations and then provide an accurate report of details encountered and knowledge gained during each shift.

This detail and knowledge must be then transferred to oncoming deputies and other senior mining officials. Formal reporting of this knowledge is essential. Verbal communications between deputies is to be encouraged.

It is recommended that formal reporting, either by specific report or with an existing statutory report, includes these matters:

Undermanagers

Inspections by Undermanagers have four purposes:

1. To audit actual face operations against the approved plan,2. To monitor panel conditions with a view to pre-empting mining problems and thereby limiting the need for on the spot variations to the approved plan,3. To develop an understanding of Pillar Extraction behaviour and thereby recommend, if necessary, any variations in future pillar extraction planning and,4. To report to more senior mining officials instances where all design conditions are complied with, but nevertheless, goaf behaviours is not as planned."

Cornwall Coal did utilise shift report documents and the evidence shows that these were completed after each shift and they included that information recommended by the Manual.

During the time of his management Mr Mellows assumed the Undermanager’s role and the evidence shows that it was his practice, as I have already noted, to carry out daily underground inspections during extraction. When Mr Morall became Manager he was aware that an Undermanager was not employed at the mine and he accepted that the Undermanager’s duties had to be assumed by himself.

Mr Morall’s evidence included this exchange with counsel-assisting:

The evidence clearly establishes that the frequency of inspections for an Undermanager as recommended by the Manual were not met by Mr Morall.

In his report Professor Galvin asked himself how the situation at Cornwall Coal could have been effectively managed given that it did not employ an Undermanager and Mr Morall’s other duties prevented from his carrying out daily inspections. Professor Galvin answered his own question in these terms, "One method which was mandatory in New South Wales and Queensland by the year 2000 was by means of a Strata Management Plan (SMP)supported by a robust Trigger Action Response Plan (TARP). Such a plan is premised on risk assessment and aims to identify all ground control risks and implement effective controls to manage these risks to acceptable levels. The plan is supported by a TARP which is designed not only to detect deviations from plan behaviour in a timely manner but also to advise on appropriate responses to these deviations. A range of trigger levels may be set, with each level elevating the awareness and level of required intervention."

Cornwall Coal did not have in place a Strata Management Plan with a TARP in October 2000.

Approvals Process for Changes to Extraction Sequences

The Manual states, "The decision to alter the approved plan must not be left to the sole discretion of the face deputy, but must be made by at least an undermanager after an on site inspection."

After Mr Morall took over the mine manager’s role he assigned the task for drawing the sequence plans to Mr Miller (this task was previously undertaken by Mr Mellows when he was manager) and the procedure was for Mr Morall to approve the plans when drawn. As I have stated earlier in these findings mining conditions presenting on 26 October caused Mr Gavaghan’s crew to be "pushed out" during the mining of sequence 11 and to discontinue that sequence. They then moved to the mining of sequence 12. They did so without reference to Mr Morall and without him undertaking any on site inspection. No formal risk assessment was undertaken at this time to determine why the conditions had made the withdrawal necessary.

In May 2000 two New South Wales mine inspectors, namely Ian Anderson and Jeff Conlon attended Cornwall Coal’s mine at the request of Workplace Standards Tasmania ("WST"). The inspectors subsequently produced two reports, the first in May and the second in July 2000. The former states its purpose to be to "permit (WST) to respond in a prompt matter to certain key issues identified by myself and Mr Conlon." It notes that "the change of mine manager at these operations provides an opportunity to direct the company’s approach on certain safety issues towards more modern and progressive safety outcomes."

In their first report Messrs Anderson and Conlon identify friable coal ribs and pillar extraction operations to be the two most significant hazards affecting Blackwood No. 2 mine. The report then says:

The report notes under the heading of "Rib Stability" that "the mechanism for rib instability relates to the presence of mudstone bands in the coal." It says,

With respect to Blackwood No. 3 mine the report noted that "the risk or rib spall appears lower than at Blackwood No. 2. However, it is worthwhile to repeat the measures outlined in 2.1 above relating to the rib hazard".

Under the heading "Strata Control," the report noted that the significance of the roof varying from sandstone to mudstone "will become clear during goaf formation and pillar extraction."

In their final report Messrs Anderson and Conlon noted that "Failures of strata around mine roadways, both upon development and extraction constitute the most likely source of serious injury to workmen in all three collieries." Further they said that the day-to-day risk of strata failure must not be ignored and areas where strata collapse may need to be reviewed were both pillar extraction and rib stability. They further noted that a less obvious impact of uncontrolled energy release during pillar extraction is the collapse of coal pillars adjacent to the goaf commenting; "Failure of these pillars may result in collapse at the workplace and in other areas of the mine remote from the goaf." They said that "Some, if not all, face and goaf edge conditions may be driven by failure of coal pillar edges, that is rib failure" and expressed the view that the role of rib failure in determining face conditions was being underestimated at the mine.

It is not clear on the evidence whether WST provided Cornwall Coal with copies of the Anderson/Conlon reports or informed it of their contents. However, it was Mr Morall’s evidence that he had sighted the reports but there is not any evidence that Cornwall Coal took any steps in response to the reports nor that it communicated their contents to the deputies and their crew members. Furthermore, it is clear on the evidence that WST did not take any steps to ensure that Cornwall Coal responded to the recommendations. It seems that WST’s only response of significance was to have its mining inspector, Mr Las, visit New South Wales prior to July 2000 to inspect coal mining operations in that State. However, Mr Las could not recall, subsequent to this visit, whether he had attended at Cornwall Coal prior to Mr Hayes’ death to inspect its operations and in particular to audit them against New South Wales’ standards. The evidence establishes that no such visit was made.

It’s relevant to note that despite the advice of Messrs Anderson and Conlon that the Manual be used in Tasmania, WST had not, in the months preceding Mr Hayes’ death, taken any steps to act on that advice. Further, it was Mr Morall’s evidence that he was in general terms familiar with the contents of the Manual and that a copy was held at Cornwall Coal. However, no steps had been taken during the short period of his management to apply the Manual’s principles to the mining operations at Cornwall Coal and Mr Morall was not sure if he had sufficient manpower to take such steps in any event.

Regulatory Issues and WST

At the time of Mr Hayes’ death Tasmania did not have any mining specific regulations.  Relevantly, it did not have any specific coal mining guidelines or Code of Practice. Rather, mining operations, along with all other industries were subject to the general duty of care provisions of the Workplace Health & Safety Act 1995 and its Regulations for the identification of hazards, risk assessment and management of risk.

In May 2008 Coroner D J Jones made these comments when handing down his findings into the deaths of three miners killed at Renison Bell:

Following these comments it was acknowledged by the Tasmanian Government and by all stakeholders in the mining industry that there was a need for the speedy adoption of mine specific regulations. At this inquest it was the evidence of the Minister for Workplace Relations that a legislative package had been developed and agreed by a reference group on mine safety legislation and that it was intended to represent the basis of instructions for Parliamentary Counsel. However, it is my understanding that to this date Parliament has still not approved any new mining legislation.

A Mr Grun was a WST inspector who had some expertise in coal mining. Up to 2000 he carried out reasonably regular inspections of the Cornwall Coal operations. He made his last inspection on 3 May 2000 when he attended the mine with Messrs Anderson and Conlon. It was after this date that the responsibility for the mine's inspection passed to Mr Las. However, as I have noted above, Mr Las did not visit Cornwall Coal during the near 6 months preceding Mr Hayes' death. This was despite the fact that in this period Mr Morall had commenced as mine manager and Messrs Conlon and Anderson had advised that the change of manager provided an opportunity for WST to provide direction on "more modern and progressive safety outcomes." The only apparent explanation for Mr Las’ non-attendance was that the other demands of his job did not permit it.

Following Mr Grun's resignation the mining inspectorate was left with its Chief Inspector, Mr Las and one other inspector to carry out all of its statutory duties Statewide. It is common ground that the inspectorate was grossly undermanned for this task.

In 2005 a State government initiative was approved to raise the number of inspectors within the inspectorate and to establish the Office of the Chief Inspector of Mines as a dedicated mines inspectorate. It was the evidence that at the time of this inquest the inspectorate has adequate resources both in terms of finances and personnel although it was acknowledged that some budgetary "stretching" had been necessary to ensure this.

Responses to the Fatal Incident

Modification to Continuous Miner

As I have noted above Mr Hayes sustained his fatal injuries whilst he was disconnecting air and water hoses from the continuous miner. This task required him to stand on the left hand side of the machine and between it and the left hand side of the pillar. The continuous miner has since been modified so that the hoses can be connected and disconnected from the front of the machine thus removing the operator from its side and hence reducing his exposure to rib spall.

Involvement of Dr Frith.

Mining engineer, Dr Russell Frith was retained by Cornwall Coal to advise it upon the method of pillar extraction to be utilised in Blackwood No. 3 if mining was to be resumed. He subsequently proposed that mining proceed by way of a partial pillar extraction method rather than the total pillar extraction system being used previously. Professor Galvin accepts that Dr Frith’s plan is the "outcome of a risk management process" and is consistent with current mining trends. Nevertheless, this court does not have sufficient information before it to comment upon the adequacy or otherwise of the extraction method currently being utilised by Cornwall Coal.

Investigation by WST

At the time of Mr Hayes’ death Mr John Las was a Senior Inspector of Mines in the employ of WST. He carried out an investigation into the circumstances of Mr Hayes’ death and produced a report which was tendered into evidence.

In his report Mr Las identified the "Probable Causes" of Mr Hayes’ death as being; "Failure to identify the risks associated with attaching and removing the services to the manifold on the continuous miner" and "Inadequate location of the services manifold on the continuous miner." Further, Mr Las made this recommendation:

Mr Las’ investigation was, in my view grossly deficient. In his closing submissions counsel assisting summarises those deficiencies. I adopt that summary. It identifies these matters;

Because of Mr Las’ inadequate investigation he failed to identify the underlying and foundational cause(s) of Mr Hayes’ death. Furthermore, his recommendation that no further action be taken was, in my opinion, inappropriate.

Formal Findings

In his findings made in chambers Coroner D J Jones made these findings as required by s28(1) of the Act:

"Adrian Brian Hayes died on or about 30  October 2000, at the Cornwall Coal Mine, Fingal.

Adrian Brian Hayes was born in St Helens on 9 July 1968 and at the time of his death was aged 32 years.

Adrian Brian Hayes was a married person who was a coal miner at the time of his death.

I find that the deceased died as a result of head injuries received in a mining accident. At the time of the deceased person’s death he was not being treated by a medical practitioner."

The evidence received at the inquest does not make it necessary to interfere with any of these findings. However, the evidence does permit me to make some further findings relevant to the cause of Mr Hayes’ death along with some recommendations and comments as permitted by s28(2) and (3).

Causation and Cornwall Coal

Mr Hayes was fatally injured when a piece of mudstone fell from the roof of the split in which he was working and struck him on the head. This was the direct and immediate cause of death. However, there were in my opinion, a number of underlying factors which played a contributory role in this tragedy. I proposed to address these now.

From 23 August to 4 October 2000 Blackwood No. 3 was mined for a total of four weeks. In this relatively brief period six separate incidents involving roof fall occurred, each causing injury to underground workers. With one exception each of these incidents occurred when mining in an area of mudstone. Four of those incidents, ie. those involving Messrs Damon and Jamie Viney, Mr Floyd and Mr Trigg all occurred in an area reasonably proximate to each other and in that same area where Mr Hayes was killed. Each of the six incidents were reported to management, either via a shift report and/or by separate notice of injury. However, none of these incidents was investigated by management and more critically, they did not, either individually or collectively provide the catalyst for a risk assessment. In the result, no regard was had to these incidents when Mr Miller prepared his sequence plan dated 11 October 2000. Had a comprehensive risk assessment been undertaken prior to this date it is likely, in my view, that the area in which Mr Hayes was killed would have been identified as an area of high risk requiring either an adjustment to the sequencing or in the very least a direction that mining should only proceed with extreme caution.

The evidence shows that in the week immediately prior to Mr Hayes’s death mining conditions were difficult. On three occasions within that four day working week the deteriorating conditions forced the crew to cease mining and to withdraw. However, on each occasion mining was resumed with the crew moving to the next sequence without any investigation being carried out to determine, if possible, the cause of the difficult conditions and to make an assessment of the risk to worker safety by continuing to mine. Had such investigation/assessment been undertaken at this time it is unlikely, given events on the morning of 30 October, that the cause of the difficult conditions would have been immediately established. This circumstance, when considered along with those earlier injury-related incidents occurring in the same general area should, in my view, have made it blatantly apparent to management during the morning shift on Thursday 26 October, if not earlier, that mining of sequence 12 and the nearby sequences should be discontinued until the cause of the difficult conditions was established and a plan put in place to safely proceed. The failure on the part of management to take this step at this time evidences, in my view, a breakdown in Cornwall Coal’s risk management systems, such as they were, which as a result exposed the underground work crew, including Mr Hayes, to the very real risk of harm.

Mr Morall returned to the mine on the morning of 30 October after an eleven day absence. That morning Mr Miller was able to inform him of the mining difficulties experienced during the previous week. He had available to him all the shift reports completed for that week and earlier. He met with Mr Gavaghan who was able to detail events on his shifts including in particular those circumstances which presented on the previous Thursday and which caused him to withdraw his crew during the mining of sequence 11. At that morning’s meeting no explanation for the difficult mining conditions was forthcoming. Given all the information then available to Mr Morall, it is my view that he should have, at this time directed that all mining in sequence 12 and the surrounding area be discontinued and the mining crew either be brought to the surface or re-located to a completely separate section of the mine. His failure to give this direction was a serious misjudgement on his part.

Following the morning’s meeting on 30 October Mr Morall and Mr Miller spent time at Fingal seeking information upon Blackwood No. 1 mine which may have explained the difficult mining conditions being experienced in the underlying Blackwood No. 3. Nothing fruitful was found so that by mid-morning at the latest Mr Morall, as he himself acknowledged, did not "have a clue" as to the cause of the difficulties. Mr Morall, at this point, should have realised, although this realisation should have struck him earlier, that the mining crew working in Blackwood No. 3 was exposed to an unacceptable risk and should be immediately withdrawn. This step was not taken. Further, inexplicably, Mr Morall permitted mining to continue without carrying out an underground inspection himself. Had he done so he would have observed the deteriorating conditions being experienced by Mr Gavaghan and his crew, a further factor which should have reinforced the need for withdrawal.

As I have indicated, it is my conclusion that management at Cornwall Coal should have appreciated, prior to 30 October, but at least by morning of that day, that the recent history of unexplained roof falls in the area proximate to sequence 12 made it unsafe for work to continue and compelled the cessation of mining and the withdrawal of the work crew. This did not happen because of the misjudgements of Cornwall Coal and its manager made in the absence of proper risk assessment processes and in an environment where the safety regulator, to use the colloquial, "went missing."

When Mr Mellows was mine manager he pursued a very "hands on" management style as I have detailed earlier in these findings. Although not "textbook" it did, in all probability, achieve an adequate management of those risks associated with the mining operations.

The situation changed upon Mr Mellow’s retirement. "Hands on" management was not Mr Morall’s modus operandi and he assigned to Mr Miller several important tasks which denied him that day-to-day familiarity with the mine’s operations and its workforce. Further, unlike his predecessor, Mr Morall had additional duties which obligated him to be absent from the mine for in excess of 25% of its operating time. As a result he was unable to carry out daily underground inspections during extraction and there was not any other person at the site, including Mr Miller, with adequate qualifications and experience to properly perform this task.

Cornwall Coal should have been aware upon the resignation of Mr Mellows that it was losing a manager who had been able to adequately manage risk because of his "hands on" approach. It should also have been aware that it was losing, on his departure, a vast reservoir of information and knowledge of the mine, its geology and operations which had not been documented. These factors coupled with its appointment of a manager who was not "hands on" and who was required to be absent from the mine for appreciable periods obligated Cornwall Coal to review its risk management processes. Such review, one postulates, would have demonstrated the need for a suitably qualified person to be available to carry out daily underground inspections during extraction, particularly during those times when Mr Morall was absent. It is pertinent to note that Mr Morall himself had recognised the need for an undermanager to be appointed but his request for an appointment had not been acted upon by 30 October 2000. Had an undermanager, or similarly qualified person been available in the week prior to Mr Hayes’ death to carry out daily inspections it is highly probable, in my view, that the information on the deteriorating ground conditions gathered by him would have fortified the need for the mine manager to direct mining to cease.

A review by Cornwall Coal of its risk management processes undertaken at the time of the management change would have revealed the shortfalls in its risk management processes and provided the opportunity for it to adopt that risk management approach recommended by the Manual. Compliance with that approach would, in my opinion, have very significantly reduced the likelihood of Mr Hayes’ death. Furthermore, such a review would have evidenced the need for a Strata Management Plan supported by a TARP, particularly if the mine was to operate without an undermanager. These devices, which Professor Galvin has stated were mandatory for coal mining in New South Wales and Queensland would, in all probability, have forewarned management of the need to cease mining in the area of sequence 12 until a proper and thorough risk assessment was undertaken to determine if mining could safely resume.

As my above analysis hopefully shows, the history of "red flag" events occurring over the two month period prior to Mr Hayes’ death should have alerted management, at least by the morning of 30 October 2000, to the need to withdraw Mr Gavaghan’s work crew from sequence 12 because of the unreasonable risk of injury from roof fall. Its failure to do so demonstrates the insufficiency of its risk management processes. Had Cornwall Coal had in place and followed a risk management regime incorporating the principles set out in the Manual together with a Strata Management Plan supported by a TARP, which was commonplace at the time in other jurisdictions, then it is highly probable that Mr Hayes and his colleagues would not have been permitted to mine sequence 12 on 30 October and his death would have been avoided.

Causation and WST

In May 2000 WST received the first report from Messrs Anderson and Conlon. It advised that the upcoming change in management presented an opportunity to direct Cornwall Coal to modernise its approach "on certain safety issues." However, WST did not utilise this opportunity. It took no steps to ensure that Cornwall Coal acted upon the recommendations made by Messrs Anderson and Conlon in their two reports nor did it ensure that a review took place of its operations including its risk management practices following Mr Las’ visit to New South Wales where he presumably gained a knowledge of safety standards applying to coal mining in that State. In the very least one would expect Mr Las to have been familiarised with the Manual and in particular its emphasis on risk management but it seems that no attempt was made either to adopt it as guidance material or a code of practice, or even encourage its use by Cornwall Coal. In fact the evidence shows that Mr Las, in the entire five month period that he had been the inspector responsible for the Cornwall Coal operation did not make one visit to its site. Had he done so a modest assessment of its operations would have shown significant deficiencies in its risk management practices post Mr Mellows, especially if audited against the Manual. Further, it is probable that he would have learned of the recent roof fall history and the resultant injuries. Knowledge of these matters, one postulates, may have led to intervention by WST and its insistence on some risk assessment improvements being made.

The evidence does not allow me to find that the inaction on the part of WST was a factor that directly contributed to Mr Hayes’ death. Nevertheless, I am of the view that WST, by such inaction, did permit mining operations at Cornwall Coal to be undertaken unchecked and without review when its risk management practices were deficient and workers such as Mr Hayes were exposed to unreasonable risk.

In my findings made following the inquest into the death of Mr Larry Knight at Beaconsfield I commented that the conduct of WST in that matter "constituted an abrogation of its statutory duty to inspect, monitor and enforce safe work practices at the Beaconsfield mine" and "As such (WST) denied Mr Knight that level of protection that he was entitled to expect from a properly functioning inspectorate." Those comments have equal application to this matter.

Comment and Recommendation upon Legislative Reform

It is now nearing two and a half years since Coroner Jones’ recommendations were made following the Renison inquests. At the inquest into the death of Mr Larry Knight evidence was given by occupational health and safety expert, Professor Michael Quinlan, strongly supporting the need for mining specific legislation. In my findings made following that inquest I endorsed the recommendations and comments of Coroner Jones and Professor Quinlan. Those findings were made eighteen months ago. Now, in this inquest this particular comment made by Professor Galvin resonates. He was asked whether there were any matters that the Coroner should be aware of and replied:

Like Professor Galvin I have great difficulty in understanding why the Tasmanian government has failed to deliver legislative reform in an area of worker safety where workplace deaths have clearly demonstrated the need for urgent intervention and where such intervention is supported by the Chief Inspector of Mines and by WST as the body responsible for workplace safety. It was the evidence of the Minister that a legislative package has now been finalised. It is my strong recommendation that such package be incorporated in legislative form and adopted by Parliament without further delay.

Other Comments

Although it was the evidence at this inquest that the Office of the Chief Inspector of Mines is currently sufficiently resourced to carry out all of its statutory obligations I nevertheless have strong reservations that this will continue to be so. This causes me to repeat that recommendation made following the inquest into the death of Mr Larry Knight where I recommended that an audit of the Office of the Chief Inspector of Mines be undertaken each twelve months to ensure that it is properly meeting its statutory duties.

I have expressed earlier in these findings my view that the investigation of the circumstances of Mr Hayes’ death undertaken by Mr Las was deficient and his recommendation that no further action be taken was inappropriate. It is my view that had Mr Las’ investigation been more thorough and professional he would have concluded that deficiencies in Cornwall Coal’s risk management processes had unreasonably exposed Mr Hayes to the risk of injury on 30 October 2000. This conclusion would, in all likelihood have led to the possible prosecution of Cornwall Coal and its management.

It is apparent to me that the inadequacy of the investigation was in large measure a manifestation of WST’s failure to adequately staff and resource its inspectorate. It is one of WST’s critical obligations as safety regulator to ensure that breaches of safety standards are prosecuted, especially where serious injury or death is a consequence. Such prosecution is dependant upon the event being fully investigated. WST’s capacity to conduct such investigations is one of those criteria which should be measured in that annual audit which I refer to above.

Summary

As has been previously found by Coroner Jones, Mr Hayes died on 30 October 2000 at Cornwall Coal mine as a result of head injuries received in a mining accident.

Mr Hayes’ death was avoidable. It occurred because Cornwall Coal’s management failed to appreciate that a recent history of unexplained roof falls occurring in Blackwood No. 3 made it unsafe for mining to continue and compelled its cessation and a direction that the work crew including Mr Hayes be withdrawn. A significant factor which underlay the failure on the part of management to direct a withdrawal was the absence of a proper risk management regime. Had such a regime been in place and applied it is highly probable that Mr Hayes and his colleagues would not have been permitted to mine sequence 12 on 30 October 2000.

By its inaction WST permitted Cornwall Coal’s mining operations to proceed unchecked and without review when its risk management practices were deficient and exposed the workforce, including Mr Hayes, to unreasonable risk. As such Mr Hayes was denied that level of protection to which he was entitled from a properly functioning safety regulator.

I conclude by extending my sincere condolences to Mr Hayes’ family.

Dated the 25 day of August 2010.

Rod Chandler
CORONER

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