BM Alliance Coal Operations Pty Ltd v le Roux (No 2) [2024] ICQ 20

INDUSTRIAL COURT OF QUEENSLAND CITATION: BM Alliance Coal Operations Pty Ltd v le Roux (No 2) [2024] ICQ 20 PARTIES: BM ALLIANCE COAL OPERATIONS PTY LTD (appellant) v JACQUES LE ROUX, CHIEF INSPECTOR OF COAL MINES, RESOURCES, SAFETY AND HEALTH QUEENSLAND (respondent) FILE NO/S: C/2023/44 C/2023/45 PROCEEDING: Appeals DELIVERED ON: 13 November 2024 DELIVERED AT: Brisbane HEARING DATE: 4 March 2024, 6 March 2024, 12 March 2024, 13 March 2024 MEMBER: Davis J, President ORDER: 1. The stays ordered of each of the two directives are maintained until further order. 2. By 4.00 pm on 20 November 2024, the appellant file and serve written submissions as to the appropriate orders on the appeal including costs. 3. By 4.00 pm on 27 November 2024, the respondent file and serve written submissions in reply. 4. The parties have leave to file, before 4.00 pm on 4 December 2024 an application for leave to make oral submissions on final orders. 5. In the absence of any application the question of final orders will be determined on any written submissions received and without further oral hearing. CATCHWORDS: INDUSTRIAL LAW – WORK HEALTH AND SAFETY – DUTIES AND LIABILITIES – DUTIES – RISK ASSESSMENT AND SAFE SYSTEM OF WORK – where the appellant is a coal mine operator – where the appellant operates a coal mine at Peak Downs – where the coal mine is subject to lightning activity in storm season – where the appellant instigated a Trigger Action Response Plan (TARP) which prescribed actions to be taken in the event of lightning – where Level 1 conditions were lightning within 60 to 30 kilometres from the mine – where Level 2 conditions were -- 1 of 34 -- 2 lightning within 30 kilometres to 16 kilometres from the mine – where Level 3 conditions were lightning less than 16 kilometres from the mine – where the TARP provided for certain Heavy Mobile Equipment (HME) to continue operating notwithstanding Level 3 conditions – where the respondent is the chief inspector of Coal Mines, Resources, Safety and Health – where the respondent directed the appellant that work by certain HMEs should cease at Level 2 – where the appellant appealed the directive – where the HMEs operated as a Faraday cage in the event they were struck by lightning – whether the HMEs operated as a perfect Faraday cage – whether there were avenues of conductivity into the HME – whether there was unacceptable risk of an electrical charge affecting a mine worker in HME – where it is recognised that a lightning strike may cause tyres on a HME to burst – where it is accepted that will not occur if the tyres are filled with nitrogen – whether procedures in place to ensure nitrogen- filling are sufficient – whether there is an unacceptable risk Coal Mining Safety and Health Act 1999 (Qld), s 6, s 7, s 18, s 21, s 29, s 30, s 31, s 33, s 34, s 41, s 42, s 62, s 166, s 168, s 243, s 246, s 248 Industrial Relations (Tribunals) Rules 2011 (Qld), r 3, r 132 Attorney-General (Qld) v Lawrence [2011] QCA 347, cited Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21, cited Attorney-General (Qld) v Beattie [2007] QCA 96, considered BM Alliance Coal Operations Pty Ltd v le Roux [2023] ICQ 31, related Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62, cited Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited Dalliston v Taylor [2015] ICQ 017, cited George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1, cited Minister for Immigration v Kurtovic (1990) 92 ALR 93, followed Prior v Mole (2017) 261 CLR 265; [2017] HCA 10, cited Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31, cited TVW Ltd v Robinson [1964] WAR 33, cited COUNSEL: J R Hunter KC with B I McMillan and S E Harburg for the appellant in each appeal A D Scott KC with P H Nevard for the respondent in each appeal -- 2 of 34 -- 3 SOLICITORS: Herbert Smith Freehills for the appellant in each appeal Gadens for the respondent in each appeal [1] BM Alliance Coal Operations Pty Ltd (BM) appeals against a directive given by Jacques le Roux who is the chief inspector of Coal Mines, given under the provisions of the Coal Mining Safety and Health Act 1999 (CMSH Act). Background [2] BM is a coal mine operator1 which operates the Peak Downs Coal Mine situated south-east of Moranbah in the Bowen Basin. As already observed, Mr Jacques le Roux is the chief inspector of Coal Mines.2 [3] The Bowen Basin can be subject to violent electrical storms. This raises safety issues. [4] Pursuant to its obligations under the CMSH Act, BM has: (a) appointed a Site Senior Executive (SSE) for the mine, Mr Michael Thomas;3 and (b) ensured that the SSE has developed and implemented a Safety and Health Management System for the mine (SHMS).4 [5] Part of the SHMS for the Peak Downs Mine are safety procedures which apply to work being conducted during severe weather events including electrical storms and other lightning activity. The relevant safety procedures are prescribed by BM in the BMA Coal PRO Severe Weather Management (BMA-PRO-0078, Version 5.3, 3 June 2022) (the Severe Weather Policy). With the Severe Weather Policy is a Trigger Action Response Plan (TARP), which concerns actions to be taken in the event of lightning (the Lightning TARP) and a Site Severe Weather TARP (Severe Weather TARP). [6] Both the Lightning TARP and the Severe Weather TARP operate around triggers identified as “levels”. These levels are defined by reference to the distance lightning strikes are detected from Peak Downs Mine. The levels are: (a) Level 1 - Lightning within 60-30km from Peak Downs Mine; (b) Level 2 – Lightning within 30km-16kim from Peak Downs Mine; and (c) Level 3 – Lightning less than 16km from Peak Downs Mine. [7] What is in contention is the management during lightning activity of certain Heavy Mobile Equipment (HME) which operates on rubber tyres, as opposed to metal tracks. There are two concerns. The first is the prospect of the HME being struck by lightning and some of that electrical charge passing into a person within the vehicle. Secondly, it is common ground that a HME operating on air-filled rubber tyres is in danger if struck by lightning, as the tyres are vulnerable to explosion, leading to a loss of control of the vehicle. The answer to this problem is to fill the tyres with nitrogen rather than air which contains oxygen. This avoids the tyres exploding. 1 Coal Mining Safety and Health Act 1999, s 21. 2 Appointed pursuant to the Resources Safety and Health Queensland Act 2000. 3 Coal Mining Safety and Health Act 1999, s 41(1)(d). 4 Coal Mining Safety and Health Act 1999, s 41(1)(e). -- 3 of 34 -- 4 [8] Pursuant to his obligations under the CMSH Act, Mr Thomas, as the SSE, has sought to address those concerns in the Severe Weather Policy and the associated TARPs. Mr le Roux formed the view that, notwithstanding the operation of the Severe Weather Policy and the associated TARPs, risk of injury to a person5 may reach an unacceptable level.6 Upon forming that view, Mr le Roux gave the directives which effectively alter the operation of the Lightning TARP.7 [9] It is unnecessary to set out the Lightning TARP. Its effect is summarised in non- contentious terms by Mr Thomas in his affidavit, filed on 22 November 2023: “12. As set out in the Lightning TARP, by way of summary: (a) during “Normal Operations”, storm activity is monitored; (b) at a “Level 1 Alert”, steps are taken to prepare for increased lightning activity, such as securing loose equipment, preparing to divert certain plant and equipment from exclusion zones, and identifying safe park up locations; (c) at a “Level 2 Alert”, lightning exclusion zones are established and delineated, high risk activities outside safe locations have ceased, track dozers conducting slot pushing and work where direct vehicle access cannot be maintained for light or medium vehicles must park in a location that is accessible by a light or medium vehicle, CMWs working on the ground and in exposed areas are to make the area safe and must move to a safe location prior to Level 3 Alert efficiently and safely (no rushing), and where lightning exclusion zones are established, supervisors must account for all CMWs in their control. With respect to HME specifically, under the Lightning TARP, where there is a Level 2 Alert for HME with any tyre filled with nitrogen with a purity of 94.9% or less (or filled with air), the operator must park up in a safe location as directed by their supervisor; (d) at a “Level 3 Alert”, all high-risk activities outside safe locations have ceased. e.g. lifting and cranage, elevated work platforms (EWPs), exploration drill rigs etc. and no on ground pedestrian activities are to be undertaken (supervisors to remain inside Light Vehicles doors must be shut and windows closed during pit inspections) such that all operations at the Mine have effectively ceased except (with ongoing monitoring of lightning activity): i. HME with all tyres filled with nitrogen with a purity of 95% or greater, the operator can continue to operate the HME (unless directed 5 Coal Mining Safety and Health Act 1999, s 18; see paragraph [24] of these reasons. 6 Coal Mining Safety and Health Act 1999, s 29; see paragraph [26] of these reasons. 7 Coal Mining Safety and Health Act 1999, s 166; see paragraph [40] of these reasons. -- 4 of 34 -- 5 otherwise by supervisor or OCE) and monitors communication for updates to TARP status. This applies to areas outside lightning exclusion zone (blast). Doors must be shut and windows closed; i. Tracked equipment outside lightning exclusion zones (blast) excluding Track Dozers conducting slot pushing or work where direct vehicle access cannot be maintained for light or medium vehicles; ii. Draglines outside lightning exclusions (blast); and iii. Emergency responses as required for the preservation of life. 13. There is then a process by which normal operations are recommenced with this communicated to CMWs by the open- cut examiners (OCE) and the Integrated Remote Operations Centre (IROC). This involves an assessment by IROC in consultation with the OCE based on a combination of the effluxion of time since the last lightning activity was detected and monitoring that the storm is moving away from the Mine.” (emphasis added) [10] Part 9 of the CMSH Act concerns coal mining inspectors and their powers. On 25 October 2023, Mr le Roux gave two directives to BM. One of the directives was given pursuant to s 166 of the CMSH Act (the 166 Directive) and one was given pursuant to s 168 (the 168 Directive).8 [11] The 166 Directive was in these terms: “Directive Given: Pursuant to section 166 of the Act, I direct the SSE9 to take the following preventative actions at the Mine immediately upon the receipt of this Directive, in order to prevent Risk whilst a Level 3 TARP is in place reaching an unacceptable level: (a) When a Level 2 TARP is in place, requiring coal mine workers operating any HME with rubber tyres >24” (including HME10 with rubber tyres >24” and >95% nitrogen) to: (i) park up in Safe Park Up Locations as directed by their supervisor; and (ii) exit the cabin and relocate inside a Safe Building efficiently and safely (no rushing); and 8 Sections 166 and 168 appear at paragraph [40] of these reasons. 9 A reference to the Site Senior Executive. 10 Heavy Mobile Equipment. -- 5 of 34 -- 6 (iii) remain inside a Safe Building until Mine control communicates to all personnel that “the lightning alert has been lifted”. (b) Taking such other actions as the SSE considers to be necessary in order to facilitate the safe and timely discharge of the above actions, including, but not limited to, giving consideration to whether the actions in (a) ought to occur in a Level lower than a Level 2 TARP in order to ensure that all coal mine workers operating HME with rubber tyres >24” have sufficient time to park up in a Safe Park Up Location, exit the cabin, and relocate inside a Safe Building efficiently and safely (no rushing) before a Level 3 TARP is reached. In this Directive: Heavy Mobile Equipment (abbreviated to HME) has the same meaning as in the BMA Coal PRO Severe Weather Management (BMA-PRO-0078, version 5.3, 3 June 2022), namely: Heavy Mobile Equipment Class includes: Heavy Vehicle All heavy off-road vehicles and mobile equipment, not normally registrable for QLD public road use. Examples of HME that are identified in the TARP include haul trucks, water trucks, loaders and graders. HME with rubber tyres >24” means all Heavy Mobile Equipment on rubber tyres that are 24 inches or larger in size. HME with rubber tyres >24” and >95% nitrogen means any HME with rubber tyres >24” that are believed to be filled with nitrogen at a purity of 95% or higher. Level 1 TARP means a Level 1 (yellow) alert condition under the TARP. Level 2 TARP means a Level 2 (orange) alert condition under the TARP. Level 3 TARP means a Level 3 (red) alert condition under the TARP. Mine means the Peak Downs Coal Mine. Operator means BM Alliance Coal Operations Pty Ltd. Risk means the risk of injury to persons arising out of lightning occurring at the Mine. Safe Buildings are structures and buildings identified by the ‘visible system’ referred to in the BMA Coal PRO Severe Weather Management (BMA-PRO-0078, version 5.3, 3 June 2022) and include the structures and buildings deemed to be safe locations in accordance with item 14 of the BMA Coal PRO Severe Weather Management (BMA-0078, VERSION 5.3, 3 June 2022), provided -- 6 of 34 -- 7 that they are identified by the “visible system”. For the avoidance of doubt, HME with rubber tyres >24” are not Safe Buildings. Safe Park Up Location has the same meaning as in the BMA Coal PRO Severe Weather Management (BMA-PRO-0078, version 5.3, 3 June 2022), namely an area away from coal mine workers that does not impede other work groups safe access. In accordance with the TARP, Safe Park Up Locations are to be identified by Production Supervisors whilst a Level 1 TARP is in place. SSE means the Senior Site Executive for the Mine. TARP means BMA Coal Lightning Trigger Action Response Plan (TARP), version 5.3, dated 10 November 2022. For the avoidance of doubt, nothing in this directive prevents the Operator undertaking actions (including using emergency vehicles) to facilitate an emergency response for the preservation of life in accordance with the PDM PROCEDURE Site Emergency Response Procedure, Version: 3.10 (17 December 2022) when a Level 3 TARP is in place. References: Refer to Mine Record Entry, dated 25 October 2023.” (emphasis added) [12] The 166 Directive alters the operation of the Lightning TARP. By the Lightning TARP, HME with tyres filled with a purity of 95% nitrogen or more may continue to operate through both a Level 2 and Level 3 alert. By the 166 Directive, once lightning activity is detected within 30 kilometres of Peak Downs Mine (Level 2), HMEs with rubber tyres must (whether the tyres are filled with 95% nitrogen or not) cease work, park up and the drivers must exit the vehicle and make their way to a Safe Building. [13] The critical difference between the Lightning TARP as instigated by BM and the 166 Directive is that: (a) by the Lightning TARP, HME with tyres filled to 95% nitrogen may continue to operate through both a Level 2 and Level 3 event; and (b) by the 166 Directive, work must cease at Level 2. [14] In written submissions filed on behalf of Mr le Roux, this was said: “15. In the Chief Inspector’s submission, the Court’s decisional freedom within the heads of power conferred by s. 248(1) of the CMSH Act is unconstrained, save that the Court must not exceed the powers conferred upon the Chief Inspector by ss. 166 and 168 of the CMSH Act. To illustrate the breadth of the Court’s decisional freedom in the context of the appeal against the s. 166 Directive, and by way of example only (without concession): (a) if the Court were to: -- 7 of 34 -- 8 (i) form the view that risk to coal mine workers is greater if they continue to operate the subject HME during Level 3 (Red) TARP conditions than it is if they are parked up – a view the Court ought readily form given it is a matter about which the lightning experts are agreed; and (ii) as a consequence of forming the view outlined in paragraph 15(a)(i), form the requisite reasonable belief that by continuing to operate subject HME during Level 3 (Red) TARP conditions risk may reach an unacceptable level; and (iii) conclude that ceasing operation of the subject HME during Level 3 (Red) TARP conditions is reasonably achievable; but (iv) form the view that parking up and entering a safe building prior to Level 3 (Red) TARP event would not reduce risk, or could not be reasonably complied with – a matter about which the lightning experts are not agreed; then (b) the Court would be empowered to vary (under s. 248(l)(b)) the existing s. 166 Directive such as to require the Mine to cease operation and park up the subject HME, but not require that the workers relocate from HME into a safe building prior to a Level 3 (Red) TARP event.” (footnotes omitted) [15] While maintaining the primary position that the s 166 Directive ought be affirmed, Mr le Roux has, in that paragraph, put forward an alternative for the court’s consideration. By this alternative: (a) there is no requirement to cease work upon a Level 2 event; (b) there is no requirement for workers to leave the vehicles; and (c) there is a requirement to cease work and park up in the case of a Level 3 event. [16] The 168 Directive mandates amendment of the Peak Downs Mine’s SHMS consistently with the 166 Directive. It is unnecessary to consider the 168 Directive further. BM accepts that if the 166 Directive stands, the SHMS must be amended. Mr le Roux accepts that if the 166 Directive falls, so does the 168 Directive. Both parties accept that in the event that the 166 Directive is varied by order of the court11, then the 168 Directive must also be varied so as to require amendment to the SHMS consistently with the amended terms of the 166 Directive. [17] On 1 December 2023, I refused an application by BM to stay the operation of the 166 Directive.12 11 Coal Mining Safety and Health Act 1999, s 248(b). 12 BM Alliance Coal Operations Pty Ltd v le Roux [2023] ICQ 31. -- 8 of 34 -- 9 [18] A further application for a stay was filed by BM on 24 October 2024. That application was mentioned before me on 28 October 2024 and the following orders were made by consent: “1. The operation of sub-paragraphs (a)(ii) and (iii) and paragraph (b) of the Directive dated 25 October 2023 is stayed. 2. The operation of sub-paragraph (a)(i) of the Directive is stayed to the extent it purports to Level 2 TARP conditions. 3. It is a condition that the requirement in (a)(i) applies when Level 3 TARP conditions are reached. 4. The application for a stay is adjourned to a date to be fixed. 5. There are no orders as to costs.” [19] The effect of those orders is that, until final orders are made: (a) work with HMEs may continue at Level 2; and (b) work with HMEs must conclude at Level 3 and drivers park up. Statutory provisions [20] As its name suggests, the objects of the CMSH Act are to promote safety and minimise risk in coal mines. Those objects are articulated in s 6 which provides: “6 Objects of Act The objects of this Act are— (a) to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and (b) to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level; and (c) to provide a way of monitoring the effectiveness and administration of provisions relating to safety and health under this Act and other mining legislation.” (emphasis added) [21] Section 7 explains how the objects are to be achieved. Relevantly here, s 7 provides: “7 How objects are to be achieved The objects of this Act are to be achieved by— (a) imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines; and (b) providing for safety and health management systems at coal mines to manage risk effectively; and -- 9 of 34 -- 10 … (f) providing for inspectors and other officers to monitor the effectiveness of risk management and control at coal mines, and to take appropriate action to ensure adequate risk management; and …” (emphasis added) [22] Section 7(a) refers to “safety and health obligations”. As later explained, the CMSH Act imposes safety and health obligations upon not only those managing a coal mine but also those working in it.13 In this way, safety obligations are layered upon each other. The obvious policy behind such a structure is that the consequences of a breach of an obligation by one person or entity might be avoided by the performance of another person or entity of their obligations. [23] Section 7(f) refers to inspectors. As will be later explained, the inspectors are bestowed with various statutory powers including, as has already been observed, the power to give directives pursuant to ss 166 and 168.14 [24] Section 18 defines the meaning of risk as follows: “18 Meaning of risk (1) Risk means the risk of injury or illness to a person arising out of a hazard. (2) Risk is measured in terms of consequences and likelihood.” [25] It can be seen that s 18 requires risk to be measured in terms of both “consequences and likelihood”. That is the common law understanding of risk. In Attorney-General (Qld) v Beattie15, Keane JA (as his Honour then was) made observations about a risk judged as “moderate” and said this: “But this argument overlooks the point that whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising.”16 [26] Section 29 then defines the notion of “acceptable level of risk”. It provides: “29 What is an acceptable level of risk (1) For risk to a person from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is— (a) within acceptable limits; and (b) as low as reasonably achievable. (2) To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to— 13 Coal Mining Safety and Health Act 1999, s 33; see paragraph [32] of these reasons. 14 See paragraph [40] of these reasons. 15 [2007] QCA 96, which was not a case concerning mining operations. 16 At [19], followed in Attorney-General (Qld) v Lawrence [2011] QCA 347 at [90]. -- 10 of 34 -- 11 (a) the likelihood of injury or illness to a person arising out of the risk; and (b) the severity of the injury or illness.” (emphasis added) [27] Again, it can be seen that in determining whether the “risk” (defined in s 18) is “within acceptable limits and as low as reasonably achievable” regard is to be had to likelihood17 and consequences.18 Nothing in the CMSH Act is suggestive of any balancing of safety and commercial interests. The risk must be “within acceptable limits” and “as low as reasonably achievable”. Those two considerations are quite different. Some operations may be such that whatever safety measures are taken, the risk cannot be brought “within acceptable limits” and therefore operations must cease. Mr le Roux considers that operating HMEs at Level 3 conditions is such an example. BM says that operating HMEs at Level 3 conditions is within acceptable limits of risk, provided that the tyres are filled with nitrogen. If that is so then the question becomes, by reference to all precautions taken, whether “the risk is as low as reasonably achievable”. [28] Provided risk can be brought to an “acceptable level” then some risk is accepted. The CMSH Act recognises that coal mining operations may not be risk free.19 [29] Sections 30 and 31 concern achieving an acceptable level of risk and the consequences of the risk being unacceptable. “30 How is an acceptable level of risk achieved (1) To achieve an acceptable level of risk, this Act requires that management and operating systems must be put in place for each coal mine. (2) This Act provides that the systems must incorporate risk management elements and practices appropriate for each coal mine to— (a) identify, analyse, and assess risk; and (b) avoid or remove unacceptable risk; and (c) monitor levels of risk and the adverse consequences of retained residual risk; and (d) investigate and analyse the causes of serious accidents and high potential incidents with a view to preventing their recurrence; and (e) review the effectiveness of risk control measures, and take appropriate corrective and preventive action; and (f) mitigate the potential adverse effects arising from residual risk. 17 Coal Mining Safety and Health Act 1999, s 29(2)(a). 18 Coal Mining Safety and Health Act 1999, s 29(2)(b). 19 See generally Dalliston v Taylor (2015) 251 IR 3 at [83] and following. -- 11 of 34 -- 12 (3) Also, the way an acceptable level of risk of injury or illness may be achieved may be prescribed under a regulation. 31 What happens if the level of risk is unacceptable (1) If there is an unacceptable level of risk to persons at a coal mine, this Act requires that— (a) persons be evacuated to a safe location; and (b) action be taken to reduce the risk to an acceptable level. (2) Action to reduce the risk to an acceptable level may include stopping the use of specified plant or substances. (3) The action may be taken by the coal mine operator for the mine, the site senior executive for the mine, industry safety and health representatives, site safety and health representatives, coal mine workers, inspectors or inspection officers.” [30] Section 30 refers to the requirement of the CMSH Act that “management and operating systems must be put in place for each coal mine”.20 Relevantly here, that includes a “safety and health management system” (SHMS). [31] Various statutory positions are created or recognised by the CMSH Act. Relevantly here is the “Coal Mine Operator”, which is BM and the Site Senior Executive (SSE), Mr Michael Thomas. [32] Part 3 casts safety and health obligations upon various persons. The general section is 33. It provides: “33 Obligations for safety and health (1) Coal mine workers or other persons at coal mines or persons who may affect safety and health at coal mines or as a result of coal mining operations, have obligations under division 2 (safety and health obligations). (2) The following persons have obligations under division 3 (also safety and health obligations)— (a) a holder; (b) a coal mine operator; (c) a site senior executive; (d) a contractor; (e) a designer, manufacturer, importer or supplier of plant for use at a coal mine; (f) an erector or installer of plant at a coal mine; 20 Coal Mining Safety and Health Act 1999, s 30(1). -- 12 of 34 -- 13 (g) a manufacturer, importer or supplier of substances for use at a coal mine; (h) a person who supplies a service at a coal mine. (3) If a corporation has an obligation under this Act, an officer of the corporation has obligations under division 3A (also safety and health obligations).” [33] Section 33 identifies various entities including “a coal mine operator”21 and an SSE.22 Individual sections then cast specific obligations upon those persons.23 [34] Section 41 concerns the obligation of coal mine operators: “41 Obligations of coal mine operators (1) A coal mine operator for a coal mine has the following obligations— (a) to ensure the risk to coal mine workers while at the operator’s mine is at an acceptable level, including, for example, by providing and maintaining a place of work and plant in a safe state … (c) not to carry out an activity at the coal mine that creates a risk to a person on an adjacent or overlapping petroleum authority if the risk is higher than an acceptable level of risk; (d) to appoint a site senior executive for the mine; (e) to ensure the site senior executive for the mine— (i) develops and implements a safety and health management system for the mine; and (ii) develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine; …” (emphasis added) [35] Section 41 obliges a coal mine operator to appoint a SSE and ensure that the SSE develops and implements a SHMS. As already observed24, BM have appointed Mr 21 Coal Mining Safety and Health Act 1999, s 33(2)(b). 22 Coal Mining Safety and Health Act 1999, s 33(2)(c). 23 Coal Mining Safety and Health Act 1999, s 39(1)(c), persons generally; s 41(1)(a), coal mine operators; s 42(a), senior site executives; s 44(1), designers, manufacturers, importers and suppliers of plant; s 45(a), erectors and installers of plant; s 45A(2)(a), designers, constructors and erectors of earthworks; s 46(1)(a), manufacturers, importers and suppliers of substances. 24 See paragraph [4] of these reasons. -- 13 of 34 -- 14 Thomas as the SSE for Peak Downs Mine and he has developed and implemented a SHMS. [36] The SSE is the most senior officer employed at a coal mine and has overall responsibility for the coal mine.25 [37] Section 42 imposes obligations upon SSEs. It provides, relevantly: “42 Obligations of site senior executive for coal mine A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations— (a) to ensure the risk to persons from coal mining operations is at an acceptable level; (b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work is at an acceptable level; (c) to develop and implement a safety and health management system for all persons at the mine, including contractors and service providers …” (emphasis added) [38] By s 42(c), the SSE must develop and implement a SHMS. Section 62 then relevantly provides: “62 Safety and health management system (1) The safety and health management system, for a coal mine, is a single system that incorporates risk management elements and practices that ensure the safety and health of persons who may be affected by coal mining operations. … (5) The safety and health management system must be adequate and effective to achieve an acceptable level of risk by— [a number of specific requirements are listed]” (emphasis added) [39] Enforcement is achieved in various ways. A breach of a safety obligation may lead to criminal sanction.26 An inspectorate is created by Part 9 and various powers are bestowed upon inspectors generally, and the chief inspector in particular. The inspectors, including the chief inspector, are appointed pursuant to a related act being the Resources Safety and Health Queensland Act 2000. [40] As already observed, the directives here were given by the chief inspector pursuant to powers bestowed by s 166 and 168.27 They provide, relevantly: 25 Coal Mining Safety and Health Act 1999, s 25. 26 Coal Mining Safety and Health Act 1999, s 34. 27 See paragraph [10] of these reasons. -- 14 of 34 -- 15 “166 Directive to reduce risk (1) If an inspector or inspection officer reasonably believes a risk from coal mining operations may reach an unacceptable level, the inspector or officer may give a directive to any person to take stated corrective or preventative action to prevent the risk reaching an unacceptable level. (2) The directive may be given orally or by notice. (3) If the directive is given orally, the person giving the directive must confirm the directive by notice to the person in control of the mine or part of the mine affected by the directive and to the relevant site senior executive. (4) Failure to comply with subsection (3) does not affect the validity of the directive. … 168 Directive to review safety and health management system and principal hazard management plans If an inspector believes the safety and health management system or a principal hazard management plan for a coal mine is ineffective, the inspector may give a directive to review the safety and health management system or the principal hazard management plan and make it effective.” (emphasis added) [41] Part 14 of the CMSH Act provides for appeals from various decisions. Here, the decisions under appeal are those of the chief inspector, Mr le Roux. The relevant sections are 243, 246 and 248, which provide: “243 Who may appeal A person whose interests are affected by the following may appeal to the Industrial Court— (a) a decision of the chief inspector under section 149(3)(a) to retain a seized thing; (b) a directive given by the chief inspector; (c) a review decision of the chief inspector under part 9, division 5, subdivision 4. … 246 Hearing procedures (1) The procedure for an appeal is to be in accordance with the rules of court or, if the rules make no provision or insufficient provision, in accordance with directions of the Industrial Court. (2) An appeal is by way of rehearing, unaffected by the chief inspector’s review decision or a directive given. -- 15 of 34 -- 16 … 248 Powers of court on appeal (1) In deciding an appeal, the Industrial Court may— (a) confirm the directive or decision appealed against; or (b) vary the directive or decision appealed against; or (c) set aside the directive or decision appealed against and make a directive or decision in substitution for the directive or decision set aside; or (d) set aside the directive or decision appealed against and return the issue to the person who gave the directive or to the maker of the decision with directions the court considers appropriate. (2) If on appeal the court acts under subsection (1)(b) or (c), the decision is taken, for this Act (other than this part), to be that of the chief inspector or the person who gave the directive. (3) The court may make an order for costs it considers appropriate.” (emphasis added) [42] It is common ground that as the directives affect the way in which BM conducts its coal mining activities during times of severe weather and lightning, BM is “a person whose interests are affected by … a directive given by the chief inspector” and therefore has standing to bring the appeals. [43] All administrative decisions are subject to review through the prerogative powers of State Supreme Courts.28 The scope of and nature of any statutory avenue of review or appeal is ultimately dependent upon the proper construction of the statute bestowing the avenue of review or appeal.29 [44] Here, s 246(2) provides that the review by the Industrial Court is “unaffected by the chief inspector’s review decision or a directive given”. In some respects it is a misnomer to regard such a right of review as an “appeal”, as an appeal is a process to correct error.30 In any event, the parties are agreed, and it does seem to be the meaning of the provision, that the “appeal” is a hearing de novo. [45] Section 246 refers to “the rules of court” which is a reference to Part 5 of the Industrial Relations (Tribunals) Rules 2011. That applies as the CMSH Act is an “appeal Act”.31 28 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at [55]. 29 Builders’ Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-621. 30 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204. 31 Industrial Relations (Tribunals) Rules 2011, r 3, r 132 and Sch 2, definition of “appeal Act” para (b). -- 16 of 34 -- 17 Red herrings have been let loose [46] Issues emerged which in my view are either irrelevant or of so little weight that they ought to be disregarded. [47] Mr le Roux’s predecessor, Chief Inspector Peter Newman, in March 2021 issued directives pursuant to ss 166 and 168 of the CHMS Act in relation to BM’s Saraji Mine. Those directives compelled cessation of work by miners using HMEs once Level 3 of the Lightning TARP had been reached. [48] An appeal was lodged by BM against the Saraji Mine directives in April 2021 and in August, Chief Inspector Newman withdrew the directives. [49] A point was sought to be made that Mr le Roux, by issuing the 166 Directive and the 168 Directive, was acting contrary to the position adopted by former Chief Inspector Newman and that held some significance. [50] Section 166 vests power in an inspector (including the chief inspector) to give a directive where they “reasonably believe a risk of coal mining operations may reach an unacceptable level”.32 The jurisdictional fact upon which the power arises has both an objective and a subjective element. The inspector must actually hold the belief (the subjective element) and the belief must be reasonably held (the objective element).33 The power is vested in the person who holds the relevant office; here the chief inspector. The holding of the belief has a temporal aspect in that it must be held at the time the power is exercised.34 The power is to give a directive of a particular type, namely to a person “to take corrective or preventative action to prevent the risk reaching an unacceptable level”.35 [51] It cannot be that the power of an inspector under s 166(1) is limited or in some way inhibited by the way in which another holder of the power, or a former holder of the power, has exercised or decided not to exercise that power at some other time. Further, as Gummow J observed, sitting in the Federal Court in Minister for Immigration v Kurtovic,36 a discretion which is bestowed by statute is to be exercised as the legislature intended and no estoppel arises as a result of an earlier exercise of the discretion.37 [52] The point that any decision must be made on the evidence currently available was made by Mr le Roux in his evidence. I found Mr le Roux to be an impressive witness. He is highly qualified and experienced and understood that the exercise of his powers depended upon circumstances that were constantly changing. He accepted for instance, that in the course of the current appeal, expert evidence had been obtained which required his further consideration. He also said that there were further matters that he wished to investigate.38 32 Section 166(1) appears at paragraph [40] of these reasons. 33 Prior v Mole (2017) 261 CLR 265; TVW Ltd v Robinson [1964] WAR 33; and George v Rockett (1990) 170 CLR 104. 34 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [40]. 35 Coal Mining Safety and Health Act 1999, s 166(1). 36 (1990) 92 ALR 93. 37 At page 111, followed in Attorney-General (NSW) v Quin (1990) 170 CLR at 17. 38 See transcript T3-26, T3-27, T3-29. -- 17 of 34 -- 18 [53] It was appropriate for Mr le Roux to explore the effectiveness of TARPs which did not require the cessation of operations at Level 3. It was open to BM to call evidence from Mr Newman, who would undoubtfully qualify as an expert, but chose not to. The fact that some other chief inspector may have acted differently at some earlier time is irrelevant and the attempt to level criticism at Mr le Roux on that basis was misplaced. [54] Also misplaced was the criticism of Mr le Roux based on the fact that directives similar to the 166 Directive had not been given to all coal mine operators in the Bowen Basin. The 166 Directive was given to BM pursuant to a specific statutory power and the issue on appeal is whether upon hearing the matter de novo that directive should have been given. It was a perfectly valid forensic exercise for BM to explore in evidence the safety history (as it related to lightning strikes) of those mines where a TARP less restrictive than the 166 Directive applied, however, the fact that no similar directives have (or have as yet) been given in relation to other mines is not probative of any issue presently before me. The questions on the appeals concern the exercise of statutory powers by Mr le Roux in reference to operations at Peak Downs Mine. The real issues [55] As already observed, the 166 Directive will stand provided a particular belief is held on reasonable grounds. Also as already observed, Mr le Roux in his evidence candidly stated that there were aspects of his knowledge of the relevant risks which were developing. However, the appeal was conducted on the basis that Mr le Roux subjectively believed that the risk may reach an unacceptable level and the case was conducted on the basis that the real issues were: (a) whether the belief was reasonable; and (b) whether the 166 Directive was a directive which prevented the risk reaching an unacceptable level. [56] Two central issues emerged. [57] It is common ground that HMEs may be struck by lightning when they are operating in coal mines in the Bowen Basin. It is also common ground that as a matter of physics, a metal vessel (such as a truck), when struck by lightning, operates (not necessarily perfectly) as a Faraday cage so that lightning which hits the HME will tend not to pass into and through the occupant of the vehicle but will pass across the metal surfaces of the vehicle into the earth. [58] A question arises as to the risk that, notwithstanding that physical phenomenon, a coal mine worker inside the truck might be injured by the lightning strike. [59] The HMEs the subject of the 166 Directive are, as already observed, those which travel on rubber tyres. It is common ground that if a truck suffers a lightning strike, there is a danger that air-filled tyres will explode as the electric current passes through them to earth. It is also common ground that nitrogen-filled tyres will not explode. -- 18 of 34 -- 19 [60] In practical terms, there are two questions which are related to each other: (a) assuming the lightning strike on a HME may cause the tyres of the vehicle to explode, and thereby risk harm to the occupant, is the operation of those vehicles at Level 3 of the TARP an acceptable risk when the tyres are filled with nitrogen (the exploding tyres issue); and (b) assuming that HMEs with rubber tyres may be struck by lightning but the tyres can’t explode, does the prospect of them operating at Level 3 of the TARP otherwise constitute an unacceptable risk to workers within the vehicle (the Faraday cage issue). Exploding tyres issue [61] There are two considerations here: (a) whether tyres filled with nitrogen to the extent of 95% will explode upon lightning strike on an HME; and (b) whether it is practicably possible to ensure the tyres on HMEs are correctly filled with nitrogen. Will they explode? [62] Each party relied on experts on this topic. Mr le Roux relied on reports prepared by Dr Raymond Low. He is an engineer, holding both a Bachelor of Engineering and a Doctor of Philosophy in Materials Engineering. BM relied on Mr Terry Casey, who is also an engineer. He holds a Bachelor of Science in Metallurgy and Materials and a Bachelor of Technology in Mechanical Engineering. Neither the expertise of Dr Low or that of Mr Casey was challenged. [63] The explosion of air-filled tyres as a result of a lightning strike to a vehicle is a well- known phenomenon experienced in mining activities. In order for there to be an explosion, three elements must be present: a fuel source, an ignition source and an oxygen source. Upon a lightning strike, the current will pass to earth via the tyre or rim, creating a hotspot which initiates the degradation of the rubber which produces various flammable gasses and liquids. That is the fuel source. The process which produces the flammable gasses and liquids produces the ignition source and so, the only remaining element required for an explosion is oxygen. [64] If the oxygen is removed from the tyres then there is no relevant oxygen source and the explosion cannot occur. That assumes that the tyre does not otherwise rupture. That was an issue of concern to Dr Low, but in the end there was agreement on that issue so the position ultimately reached was that nitrogen-filled tyres will not explode upon lightning strike, leaving the only issue on this topic being whether there can be confidence that the tyres will be monitored to ensure they are filled with nitrogen. [65] Neither expert was called for cross-examination as they conferred before the trial and reached agreement on critical matters. -- 19 of 34 -- 20 Ensuring the tyres are filled with nitrogen [66] The second question as I have framed it is not strictly framed in terms of the language of s 166. However, in my view, there is a perceptible and real risk that if a HME is operated in a Level 3 event and the tyres are not filled with nitrogen to the point of 95%, the tyres will explode causing the vehicle to become uncontrollable. That would be a risk to the safety of coal mine workers which would be unacceptable. [67] Mr le Roux makes the point that it is inappropriate to focus upon the efficacy of the nitrogen filling procedures because it detracts from the other hazards that lightning strikes pose. In other words, filling the tyres with nitrogen might answer one risk but not all. As far as it goes, that submission ought to be accepted. However, my view of it is that unless the nitrogen filling and monitoring system is likely to ensure the tyres are filled with nitrogen, operating HMEs in Level 3 conditions poses an unacceptable risk. [68] Mr Thomas gave evidence in relation to the procedures he has put in place to ensure that the nitrogen purity of tyres exceeding 24 inches is 95% or greater. [69] The Peak Downs Mine has the standard operating procedure “BMA coal SOP tyre and rim safety”. This is designed to manage the risks associated with tyre procurement, testing maintaining and repairing of tyres and rims.39 [70] Amongst other things, this provides: “a. reporting to be managed for defective tyres; b. damaged and non-repairable wheels and rims to be disposed of; c. To protect against the risk of ill-fitting tyres or rims or unauthorised modifications from the manufacturer’s specifications, the Tyre SOP requires that if any change or modifications to tyres and rims is to occur it must first undergo a Management of Change process; d. master pressure gauges and master nitrogen purity gauges are to be calibrated at least annually; e. Tyre fitting is a specialised task which requires a CMW to be trained, competent and authorised prior to undertaking tyre fitting duties. Any work or repairs on tyres with a diameter >24” is to be carried out by an authorised tyre fitter. f. HME with nitrogen filled tyres are required to have a green valve cap and have signage in the cabin of the HME indicating the presence of nitrogen in the tyres; g. Registers are to be maintained for the tyres, wheel and rim assemblies for all tyres >24” for all BMA and contractor HME; h. All tyres >24” upon arrival at the Mine are to be given a unique serial number which is to be stored in the register; 39 Affidavit of Mr Thomas filed 30 January 2024, para 141. -- 20 of 34 -- 21 i. As part of the in-service maintenance of the HME, at a minimum monthly checks of nitrogen purity are to be taken and recorded in the register. In the Tyre Maintenance Critical Checklist, at item 10, there is a requirement to check that the tyre is inflated with nitrogen with a purity of 95% or greater and that each tyre inflated with nitrogen has a green valve cap and that there is a nitrogen filled sticker in the cab. At item 11 there is also a requirement to insert the purity percentages of nitrogen filled tyres into the Nitrogen Filled Tyre Register. j. All assemblies and disassembly of wheels that are 24” or greater, must have a Tyre Maintenance Critical Checklist completed. In practice, this means that when a tyre is changed in the field, the Tyre Maintenance Critical Checklist requires a nitrogen purity check to be undertaken and to include the percentage in the Nitrogen Filled Tyre Register.” [71] Mr Scott KC for Mr le Roux made the point during cross-examination of Mr Thomas that the effectiveness of these measures is, to a point, dependent upon humans following these procedures. That is true, but that is not determinative. The aim is to devise a system which is unlikely to be defeated by human error. [72] There is a designated tyre bay with specifically trained workers. Those workers are dispatched into the field to complete any necessary repairs of tyres and wheels. [73] In the tyre bay, there are facilities to fill tyres with nitrogen but there are no general air compression hoses. Therefore, there is no possibility of a tyre being inadvertently filled with air rather than nitrogen. [74] Although the systems in place appear adequate to ensure that the tyres are nitrogen- filled, Mr le Roux points to what is said to be a number of shortcomings. [75] On 28 September 2023, Inspectors Logan and Markson identified two issues. Firstly, they noticed that the nitrogen register may not be updated for periods of 24 to 72 hours. That raises an issue, as explained by Inspector Logan, that if a Level 3 event occurred over a period that the register had not been updated, there is a risk that a coal mine worker may inadvertently operate a non-compliant HME. That criticism is in my view justified. However, the fact that there might be some operational flaws within the systems that have been put in place to ensure that the tyres are filled with nitrogen does not mean that a directive pursuant to s 166 that the vehicles not operate during Level 3 conditions is necessary to make the risk acceptable. If that was the only issue, then the risk would be made acceptable by a s 166 Directive compelling that the register be updated at the time of any change in the status of a tyre from being nitrogen-filled to otherwise, or at the time of the regulator inspections. [76] The inspectors identified that on a Liebherr rear dump truck, the green tyre cap was missing and this had not been identified in records. The system is clearly designed so that there are positive signs of the existence of nitrogen in the tyre to the relevant purity. This includes the green tyre cap and the sticker to be placed in the cabin. It is the absence of those things which should raise the alarm. The only error which would be caused by the absence of the green cap is that a coal mine worker should -- 21 of 34 -- 22 then not take the vehicle into the field, notwithstanding that it was in fact compliant and fit to be used. [77] As already observed, the procedure in relation to updating the register might be able to be improved but the fact that the inspectors identified only one error (the missing green cap) during their audit and that error, for the reasons I have explained, could not increase risk, indicates to me that the system is in fact working robustly. [78] Andrew Large is a Site Safety and Health representative at Peak Downs Mine. He swore an affidavit40 where he said: “27. As to the processes for managing the nitrogen-fill tyres, I know that they have not been consistently adhered to at the Mine. 28. By way of recent example, I received a hazard report in relation to an incident at the Mine on 3 February 2024 in which workers in the tyre bay found that five of six HME tyres of a grader contained below 95% nitrogen purity. The incident was brought to my attention by a coal mine worker, who explained the details of the incident. Exhibit AL-02 to this affidavit is a true copy of the BMA incident notification on 3 February 2024. 29. The effect of this hazard report is that, until the vehicle was checked in the tyre bay on 3 February 2024, it was recorded as having 95%+ nitrogen in all six tyre positions even though (as the events of 3 February 2024 showed) that was not the case. In other words, before the tyre bay caught the issue, even though the grader did not in fact have 95%+ nitrogen in all its tyres, insofar as the Mine’s controls were concerned it was a piece of HME that did have 95%+ nitrogen-fill in all six positions, and thus would have been deployed and operational in Level 3 (Red) TARP conditions under the Mine’s Lightning TARP, were it not for the Directives issued by the Inspectorate.” [79] However, the unchallenged evidence of Mr Thomas was: “Yeah, I understand that, but in the event that the checks don’t happen, is it possible that they will not – they might not be calibrated?—Yeah, correct, and in fact, you know, I think it’s called out already in one of – one of Mr Large’s – his affidavit about the event we had where we identified a grader that, you know, had a – it identified five out of six tyres. Okay?—Now, that subsequently has been identified that – yeah, that’s exactly what’s happened in that case that the tyres in fact had the 95 per cent incorrect use of the gauge, ie, not calibrating it each time properly because if you don’t calibrate it, ie, allow it to come back to atmospheric, it – it will give you an incorrect reading because it moves your baseline.”41 40 Filed 20 February 2024. 41 T1-46, L41 – T1-47, L5. -- 22 of 34 -- 23 [80] That raises issues as to calibration of the gauges but Mr Thomas gave unchallenged evidence that these issues have been dealt with through instigating a system of checks involving not only the tyre fitter but also a third party assurance process.42 [81] As explained by Mr Dane Nielsen, the head of engineering for BM, nitrogen was introduced from 2020 and there has been continuing updates of the procedures in relation to nitrogen. Despite the inspectorate’s obvious monitoring of that situation, not one instance is pointed to which suggests that the system has failed such that a vehicle which ought to have its tyres filled to 95% by nitrogen went into the field, when that was not the case. [82] To the extent that it is necessary in order to have vehicles operating at Level 3 to ensure that nitrogen levels in the tyres are at 95%, the systems in place achieve that aim. The Faraday cage issue [83] Experts were called by both parties. Mr le Roux relied upon Dr Franco D’Alessandro who holds a Bachelor of Applied Science, a Bachelor of Education in Mathematics, Science and Computing and a Doctorate in Experimental/Computational Physics and Signal Processing. For many years he worked in the area of lightning protection. BM relied upon Mr Tony Gillespie who is a registered professional engineer who holds a Bachelor of Engineering and has been working in the field for over 40 years. [84] The expertise of both experts was accepted. Both experts produced various reports and a joint expert statement was prepared which was the product of the two experts conferring. [85] In their reports, the experts agreed as to the source of risk posed by lightning. Those mechanisms are: (a) “direct strike” to the person; (b) “side flash” from an adjacent structure, e.g., whilst sheltering beneath or beside a (typically taller) structure; (c) touching a conductor that has risen to a dangerous voltage (known as “touch voltage”); (d) “step voltage”, which arises from a lightning strike to the ground that sets up large soil voltage difference with distance or, in some cases, “surface arcing” along the ground; (e) large acoustic pressure waves, which can result in ruptured ear membranes when out in the open or in “open air” shelters; and (f) intense channel luminosity (mostly the UV radiation), which can cause eye damage such as cataracts, retinal and vitreous detachment, uveitis, iritis, corneal damage and diplopia. [86] Given those risks, the experts agreed that it is safer to be either inside a building or within an HME during a Level 3 event than it is to be out in the open. That obvious 42 T1-46. -- 23 of 34 -- 24 fact is critical in defining the real dispute. If risk is adequately provided by workers remaining in the HME in a Level 3 event, then there is no need to stop work at Level 2 and leave the vehicle. If presence within the HME does not adequately provide for safety, then any transition of workers from the HMEs to a safe building must occur earlier than Level 3 to avoid the obvious and unacceptable risk of workers being exposed to lightning whilst in the open. That is the concern which motivated Mr le Roux to direct work to cease at Level 2. [87] The critical assessment is as to the safety of a coal mine worker who is in a HME during a Level 3 lightning event. [88] The experts are agreed that there are two central issues: (a) the frequency of a direct or approximate lightning strike to HME at Peak Downs Mine; and (b) assessment of the risk of injury in that event. [89] Both experts agree that the annual frequency of direct lightning strikes should be determined according to the formulae in Standards AS1768-2021 and IEC62305-2 (2010). This is achieved by calculating the collection area for HME and multiplying it by ground flash density. There are two identified areas of lightning for Peak Downs being Peak Downs north and Peak Downs south, each of which cover a 50km radius. The total area within a 50km radius is 5,854 km2 and, subject to a caveat by Dr D’Alessandro, the ground flash density is three. The collection radius is three times the height of the HME.43 [90] Dr D’Alessandro thought that the ground flash density ought to be subject to a margin of error being plus or minus the square root of three. Therefore, Dr D’Alessandro would assess the ground flash density as between 1.268 and 4.732, which figures are calculated by deducting from three the figure of 1.732, being the square root of three to arrive at 1.268, and adding 1.732 to three to get 4.732. [91] It is not necessary to resolve the differing opinions of the experts on this topic. No party is submitting that lightning strikes at Peak Downs are rare or that their frequency is not sufficient to raise a real consideration as to safety. Mr Gillespie in his report of 8 December 2022 observes that data suggests that haul trucks in operation in BM mines are struck by lightning between once every four months to once every two years. Site Senior Executives of BM mines have recognised the safety issue, as has Mr le Roux and measures have been put in place. There has been acceptance of the risk of serious injury or death as a result of lightning strikes at Peak Downs Mine. [92] Dr D’Alessandro said of a Faraday cage: “• A true Faraday cage is an impractical structure. The best example of a true Faraday cage in real life would be a steel shipping container sitting on the ground, with no services entering or exiting, e.g., no power cable providing lightning inside. In such a situation, an occupant of the container is considered to be very safe from any direct lightning strikes. 43 Report of Dr D’Alessandro dated 27 July 2023, page 19, footnote 6. -- 24 of 34 -- 25 • In practice, however, most conductive structures are only approximations to a true Faraday cage. Examples would include steel reinforced buildings, vehicles and even lightning safe shelters.”44 [93] He went on to observe that where a Faraday cage may operate to protect its occupants, notwithstanding that it is not earthed, a failure to earth causes problems, such as sparking from the Faraday cage to (or across) the ground. [94] Mr Gillespie accepts that a metal topped vehicle is not earthed and does not act as a perfect Faraday cage. The experts agree though that there is a “Faraday cage effect”, which operates when a metal topped vehicle is struck by lightning. The electrical current which hits the surface of the vehicle dissipates across the external metal surface before ultimately finding earth. It is common ground between the experts that lines of conductivity may flow into the vehicle through metal surfaces, but the strength of the electrical charge depends upon the extent to which the charge has disbursed across the external surfaces of the vehicle. There are other factors in play as well, such as the insulation value of footwear being worn by any occupant of the vehicle and also the extent to which metal surfaces inside the vehicle are insulated. [95] The respective experts disagree as to the methodology of assessing the risk of injury or death to a worker who is in a vehicle when the vehicle is struck by lightning. Dr D’Alessandro relies on the Standards AS1768 (2021) and IEC62305-2. Mr Gillespie relies on data from BHP and a published scientific paper (the Holle Report). [96] Ronald Holle is a meteorologist and an expert recognised internationally. His expertise is acknowledged by both Mr Gillespie and Dr D’Alessandro. He has published papers exploring various aspects of lightning strikes. Relevant to the current case is his article “Lightning Caused Deaths and Injuries in the Vicinity of Vehicles”. [97] Holle in his paper identifies 76 events which concern lightning strikes where people were inside fully enclosed metal topped vehicles. In most cases45, the people were uninjured. Other injuries were relatively minor but there were four deaths. [98] In one case a driver of a vehicle died when the vehicle was hit by lightning and she lost control. The cause of the resulting crash was her loss of control of the vehicle rather than the direct effect of the lightning strike. In another instance, two men were killed when a vehicle was struck by lightning but they were leaning up against the vehicle at the time of the strike and thus providing a conduit through them for the electricity to find earth. In another incident, a man was killed when lightning struck a tree and then passed into his office which was a converted bus without wheels. In yet another incident, a man was killed while parking his tractor-semi-trailer near his home when it was struck by lightning, although the exact circumstances of that seem unclear. 44 Report 27 July 2023, page 215. 45 40. -- 25 of 34 -- 26 [99] Of significance is the comment by Holle: “Since more than half of the direct strike events involve no injuries, and the rest were typically minor impacts, the recommended lightning safety precaution (such as Holle et al 1999) to seek safety inside a fully enclosed vehicle appears to be well supported.” [100] That statement, even if accepted completely, is no answer to the 166 Directive. The question here is not whether it is safer inside a fully enclosed vehicle than it is in the open. The question is whether being in a fully enclosed vehicle during a Level 3 lightning event is an acceptable risk. [101] The BHP data46 chronicles 130 incidents of lightning strikes over a period from November 1997 to December 2023. Dr D’Alessandro criticises this data as being unverified and largely anecdotal. There is, in my view, some validity in this criticism. The description of various incidents are very vague; the description of damage, particularly so. There is no evidence of any investigation of the incidents. They are simply reported as described by witnesses. [102] The BHP data records a number of incidents where vehicles were struck by lightning while occupied by workers. These are the relevant entries47: No. Incident date Incident type Location Brief description Cause Injury/ damage 6. 08 Dec 2004 Equipment Property Damage Yarrie/ Nimingara Mine Indirect strike to Cat Loader LW807 as it was being trammed out of the Y8 Pit as a storm was passing. Worker was in the loader at the time – taken in clinic for observation Lightning Left marks on the tyres and damaged the aerial 7. 23 Dec 2004 Near Miss Mt Arthur Coal – HVC 583 truck struck by lightning. Incident Description: Operator was on truck 583 parked on L/road dump 190 level while a heavy storm came through and was it by a lightning strike on the headboard area. The operator was uninjured and the hot tire procedure was initiated and truck was isolated for 24 hours. No equipment damage details in SiteSafe. N/A Operator uninjured 11. 26 Nov 2005 Near Miss Mt Arthur Coal - HVC Suspected lightning strike to Leibherr truck 409. Incident Description: At approximately 22:15 the dump operator on the CD2-190 Level dump reported to the Dispatch that he thought truck 409 had been stuck by lightning as there was an enormous flash and a large bang. The truck operator after N/A Not specified 46 Exhibit 11. 47 These references have been faithfully reproduced notwithstanding the appearance of obvious errors. -- 26 of 34 -- 27 No. Incident date Incident type Location Brief description Cause Injury/ damage being asked by the O.C.E. if he was aware of this stated that there seemed nothing out of the ordinary with the truck and that everything appeared okay. It was decided at this stage that the truck be Parked in an Exclusion zone, Isolated Area Signed and hatted off and relevant parties notified for a period of 24 hours as a precautionary measure as per MAC-STE-SWP-008. 30. 6 Feb 2008 Equipment/ Property Damage Mt Arthur Coal – NEC Opencut Mining Area – MAC Grader 686 reportedly struck by lightning Incident Description: Operator of 686 grader reported that the machine was struck by lightning whilst he was working at the entrance to 209 work area in KS21. The operator attended first aid and as a precaution was treated as per the procedure with an electric shock. The immediate area around the grader has been isolated for 24hrs. N/A Not specified 47. 12 Nov 2009 Near Miss Orebody 18 Access Road - 018 While driving light vehicle OB14 to site from camp a bolt of lightning has impacted the ground in close proximity to the path of the vehicle. Lightning – should have stopped driving light vehicle. Reported as hazard. 58. 07 Mar 2011 Equipment/ Property Damage. Quarry 8 – QR8 Lightning struck a light vehicle (with personnel inside) when evacuating site during a thunderstorm. Lightning strike hit the flag pole resulting in the vehicle becoming inoperative due to the light vehicles ECM unit being damaged by an electrical power surge. Light Vehicle ECM unit being damaged due to an electrical power surge. 62. 10 Jan 2012 Not specified BMA Brisbane Projects At 1600hrs whilst waiting to be loaded, a 740 Moxy rear- dump truck was struck by lightning. Witnesses observed a large flash, arcing around the vehicle and the strike exiting the tyre of the vehicle. The operator of the vehicle felt associated effects of the strike. He was able to contact his supervision via UHF radio and was physically capable to remove himself from the vehicle. N/A – FPe does not include Underlying (Root) Cause The CAT 740 Moxy that was struck by the lightning was parked up immediately and a 300 exclusion zone was set- up surrounding the truck to be observed for 24- hours. The Moxy operator was treated on- site by the paramedics and taken to the Moranbah Hospital by QLD Ambulance Service for overnight monitoring. 63. 28 January 2012 Near Miss Goonyella Riverside Mine At approximately 5.16 pm yesterday Rear Dump Truck 743 tipped its load at the dump The operator assessed the situation prior to No damage and no injury -- 27 of 34 -- 28 No. Incident date Incident type Location Brief description Cause Injury/ damage and after hearing a severe weather alert announced for the site was preparing to commence to start descending the ramp however due to wet ramp and more heavy rain decided to pull up on level ground at dump area. As operator was attempting to park a lightening [sic] strike hit the side mirror area of the truck. tramming to the go line & felt the conditions were unsafe the operator made the correct decision to stop in a safe location. Personnel had been advised to cease operating & if safe to do so tram to the go line as the weather had escalated. 70. 11 Dec 2012 Equipment Property Damage Downtrack (Rall) RAL Vehicle B1735 damaged by lightning during electrical storm. Vehicle was travelling away from Yandi Mine toward the Great Northern Highway. Rear right tyre blew out, wires damaged on flag pole – lightning suspected to have hit vehicle flag pole. Vehicle would not start and electrical burning smell present. Lightning Vehicle Damage 83. 16 Nov 2015 N/A N/A Inc – 793 lightning strike While parked up for Red lightning alert on the HO7 Truck park up area 1814 was struck by lightning Immediate action taken: Supervisors notified immediately and arrived on the scene, Emergency called watercart put on standby, 2 ERT members on standby then positioned a second 793 to act as a rescue vehicle for the truck operator struck by lightning to exit the vehicle without touching the ground. Once operator was checked by ERT member 300m exclusion zone deliniated [sic] and emergency called off. N/A N/A 84. 28 July 2016 Hazard N/A Lightning strike During a weather stand-down due to a thunderstorm, a trailer at the contractor CM complex was struck by lightning. The trailer was occupied by 3 personnel at the time. There were no injuries however damage (smoldering) [sic] was sustained to the electrical system and contractor IT infrastructure. Immediate action taken … The area was secured, power isolated to the building and the N/A No injuries. Damage to electrical system and contractor IT infrastructure of trailer. -- 28 of 34 -- 29 No. Incident date Incident type Location Brief description Cause Injury/ damage Leroy Fire Department was mobilized as a precautionary measure to inspect the building. A parallel inspection was conducted by BHPB and contractor personnel using a thermal camera to ensure there were no hot spots. A follow up damage assessment will be undertaken as part of the investigation. The exact location of the lightning strike within the CM trailer complex is yet to be determined. 86. 01 Dec 2016 Hazard N/A Suspected lightning strike on ROM 624 Wheel loader was traming [sic] back from the stockpile on the Rom with its bucket near the floor when the operator reported he suspected the loder [sic] bucket may have been struck by lightning. Immediate action taken: The scence was secured with sentries and emergency procedures activated. N/A N/A 92. 28 Mar 2017 First Aid N/A FAC Lightning Strike IP was sitting in LV waiting for overhead weather to pass to commence work. A truck parked adjacent to the LV was struck by lightning which has appeared to travel between vehicles. IP has felt cramping and tingling in left calf. The IP’s left leg had been resting against the side of the gear stick. Lightning N/A 113. 27 Apr 2020 Hazard (H) WAIO, Newman Operations, Mining East (Eastern Ridge) (10072) On the 12th March 2021 at approximately 12:00pm – It was observed by 2x Maintainers that a Lightning Strike has contacted a Truck on the N-East OB24 MEM Go-Line. It can’t be determined exactly which Truck was contacted but the strike was observed to of definitely made contact. The Trucks in question are DT5288 and DT5203 (5002.20.20.76-TK025). BHP equipment involved: Truck Haul Mech Drive CAT 793F DT5203 (5002.20.20.76- TK025). N/A N/A -- 29 of 34 -- 30 [103] Entry 62 occurred on 10 January 2012. A dump truck was struck and the operator was, at least superficially, injured. He was taken to Moranbah Hospital. The only other entry where an occupant of a vehicle was injured is seen at item 92 on 28 March 2017. There the occupant suffered a superficial injury to his left calf which was resting on the gear stick. [104] This sort of anecdotal evidence, in my view, more begs the question than gives an answer. That is because safety procedures are put in place by SSEs and these probably (hopefully) have significant effect. The absence of injuries may be more a reflection on the safety measures than they are a lack of danger of lightning strikes. [105] There have been various severe weather procedures and severe weather TARPs. [106] The current TARP for severe weather48 specifically excludes lightning. It operates, relevantly, in a “severe weather event”. That is defined49 as: (a) “sustained wind gusts of gale force (60km/h) or more; (b) wind gusts of 90km/h or more; (c) very heavy rain that may lead to flash flooding; (d) localised lightning; (e) hail (2cm in diameter or greater); and (f) cyclone category. [107] The TARP seems inconsistent with the BMA Coal Pro Severe Weather Management Procedure from which that last definition is taken. An earlier version of the TARP50 provided that at Level 3, operations should be stopped unless they could continue in safe areas. There is no suggestion that the inside of an HME was regarded as a safe area. [108] The effect of all this is that work now only stops in the circumstances which I have set out at paragraph [106]. That is extreme weather. [109] All this means that there is hardly a history of BM workers operating HMEs throughout Level 3 lightning circumstances. [110] As observed by Dr D’Alessandro, this casts doubt upon the real relevance of the BHP data.51 [111] The Holle paper supports the theory that domestic motor cars operate as Faraday cages, albeit imperfect ones, and that injury is not likely to a passenger who is within one during a lightning strike. [112] To my mind that does not easily translate to HMEs. As observed by Dr D’Alessandro, passenger vehicles are likely to have significant insulation, more so that work vehicles such as HMEs which are likely to be spartan. 48 Affidavit of Michael Thomas, affirmed 29 January 2024, filed 30 January 2024, Exhibit MJT-7. 49 Affidavit of Michael Thomas, affirmed 29 January 2024, filed 30 January 2024, Exhibit MJT-5. 50 Affidavit of Michael Thomas, affirmed and filed 29 February 2024, Exhibit MJT-13. 51 It is, as Dr D’Alessandro said “skewed”. -- 30 of 34 -- 31 [113] Some HMEs have metal floors with no coverings. Some have metal levers rather than steering wheels. Some have metal foot pedals. Between HMEs there are varying degrees of internal insulation. All these things affect the efficiency of the operation of the shell of the vehicle as a Faraday cage and therefore the extent to which electricity can enter the vehicle and affect the occupants. [114] Dr D’Alessandro performed tests on the resistance to electricity transferring through various surfaces within various HMEs.52 At the same time, he identified conductivity paths to those surfaces. [115] However, in cross-examination, Dr D’Alessandro conceded that it was not possible to identify all paths of conductivity and therefore it was impossible to calculate what electricity would enter the cabin of any particular vehicle. [116] The experts agreed that work boots act as an insulator and that those made from elastomina provide better insulation than rubber soles, although there appear to be no detailed studies on this aspect. There are no procedures in place at Peak Downs Mine directing workers to wear boots of a particular specification. [117] The experts agreed that a lightning strike might generate 200,000 amps hitting the vehicle. Not all will enter the cabin even if there are conductivity routes or paths into the cabin. The extent of electricity entering the cabin depends upon the variables I have mentioned. [118] It is the case that contact of the person inside the vehicle with uninsulated metal surfaces acts as a conductivity conduit into the person. [119] Mr Gillespie was cross-examined in these terms: “- - - Dr – all right. And the point that Dr D’Alessandro made was even a small percentage of that current could be sufficient to be dangerous to a worker inside the HME [indistinct] - - -?---Yes. I agree with that. You agree with that?---Yeah. HIS HONOUR: He put a figure on it. He said that the strike could be between 5000 and 200,000 amps?---Yes. I agree with that. All right. And he said that even if it was a fraction [indistinct] 200,000, that could be dangerous to someone in the vehicle?---That’s correct. It – it’s all about – okay – so it ranges from five to 200,000. My understanding is the average is 30,000. And for a particular situation, you know, it’s hard to know exactly what current does hit the vehicle at that particular time. So there’s a range of things that happen and, yes, some of that current can go inside the cabin. And that comes back to all these variables, doesn’t it - - -?---Yes. - - - because you might have 200,000 hitting the cabin - - -?---Yes. - - - but then it’s a question of how much of that current finds its way into the – sorry – hits the - - -?---Yes. 52 His report of 20 February 2024. -- 31 of 34 -- 32 - - - vehicle, then it’s a question of how much finds its way into cabin - - -?---Yes. - - - then it’s a question of how much finds its way into the person - - -?---Between two separate points - - - And that?--- - - - [indistinct] they - - - - - - depends on things like what he’s touching and - - -?---At that time. - - - what shoes are - - -?---Yes. - - - worn and all that sort of stuff?---Exactly. Yes. That’s – that’s correct. And it looks like it’s a diminishingly small probability that all of those things ad up to generate a death or a serious injury. While it could happen, it doesn’t seem to occur in practice.”53 [120] The problem with Mr Gillespie’s conclusion that injury does not occur “in practice” is to define the “practice”. As already observed, there is not a history of workers continuing to use HME in Level 3 circumstances. The operation of the vehicles necessitate the worker touching the controls, the radio etc. and increases the possibility of the worker accidentally coming into contact with a metal surface. [121] Dr D’Alessandro’s opinions also have limitations. He relies on standards that concern buildings, not vehicles and he conceded that there are no standards which specifically concern vehicles. [122] The opinions of both experts suffer from a lack of reliable data which directly concerns the impact of lightning strikes on HMEs. The Holle Report is based on anecdotal accounts of lightning strikes upon passenger vehicles in the USA. The BHP data is also anecdotal in nature and does not reflect an experience of operating HMEs at Level 3 conditions. The standards relied upon by Dr D’Alessandro don’t concern motor vehicles, let alone HMEs. [123] What can be deduced is the following: (a) lightning strikes at Peak Downs Mine are relatively common during storm season; (b) lightning strikes upon HMEs at Peak Downs Mine during storm season are also relatively common; (c) HMEs have a Faraday cage effect so that the energy of a lightning strike which hits them is disbursed across the surface of the vehicle; (d) that Faraday cage effect gives partial protection to those inside the HME from the strike; (e) given the construction of HMEs, they do not act as a true Faraday cage; (f) there are lines of conductivity into different HMEs; (g) it is not possible to identify all lines of conductivity; (h) it is not possible therefore to calculate what charge may enter a particular HME; 53 T3-37, L24 – T3-38, L13. -- 32 of 34 -- 33 (i) many of the controls (pedals, levers etc.) within an HME have low levels of resistance to conductivity; (j) injury or death of a passenger to a metal topped passenger vehicle is all but unheard of; and (k) there is no identified case of death or serious injury to a coal mine worker who was inside a vehicle at the time of a lightning strike, although that must be qualified in that it has not been general practice to operate HMEs in Level 3 conditions. [124] In my view, risk to the safety of coal mine workers operating HMEs at Peak Downs Mine in Level 3 conditions may reach unacceptable levels. This is because: (a) the lines of conductivity into the vehicle include metal controls such as pedals and levers etc.; (b) the prospect of a coal mine worker touching a metal surface within the HME must be greater if the coal mine worker is busy within the cabin driving and otherwise operating the HME than if it is parked up; and (c) there is a possibility of death or injury.54 [125] I do not consider that the risk to a coal mine worker in a parked up HME in Level 3 conditions may reach unacceptable levels. I form this view because: (a) there is an absence of anecdotal evidence of injury or death to coal mine workers in HMEs struck by lightning; (b) the Holle Report shows that metal topped passenger vehicles have significant Faraday cage effect, and a case of death or serious injury to a passenger actually within a vehicle (as opposed to standing near it) has not been rendered; and (c) it is the pedals and other controls within the HME which have low levels of conductivity resistance and those controls will not need to be manipulated if the vehicle is parked up. [126] True it is that the safety of the coal mine worker is dependent, to a point, upon them not touching levers and metal surfaces. True also it is that that is dependent upon the discipline of the coal mine worker, but in my view, education and protocols ought to be able to be developed to meet that concern. [127] In conclusion, the TARP should operate so that operations continue through Level 2 but upon Level 3 being reached, the vehicles must be parked up and the coal mine workers remain in the vehicles until Level 3 conditions have lifted. Appropriate orders [128] As already observed, the court on appeal has the powers granted by s 248. Various possibilities arise here. Both directives could be varied consistently with these reasons. Alternatively, given that Mr le Roux in his evidence said that he was considering evidence as it came to him, the issue could be returned to Mr le Roux. Mr Thomas may also have to consider his position as to whether the Lightning TARP: 54 See Mr Gillespie’s concessions. -- 33 of 34 -- 34 (a) provides adequately for procedures for parking up in Level 3 conditions; (b) should deal with insulation within HMEs; and (c) should deal with the issues around work boots. [129] The stay of the two Directives is in place. That should be maintained while the parties are heard on the final form of orders. 1. The stays ordered of each of the two directives are maintained until further order. 2. By 4.00 pm on 20 November 2024, the appellant file and serve written submissions as to the appropriate orders on the appeal including costs. 3. By 4.00 pm on 27 November 2024, the respondent file and serve written submissions in reply. 4. The parties have leave to file, before 4.00 pm on 4 December 2024 an application for leave to make oral submissions on final orders. 5. In the absence of any application the question of final orders will be determined on any written submissions received and without further oral hearing. -- 34 of 34 --