Following the rock fall on Anzac Day 2006 that killed miner Larry Knight and trapped Todd Russell and Brant Webb underground for 2 weeks before being rescued, the Beaconsfield Gold Mine became the most investigated mine in Australian history. Much technical knowledge has been gained since the incident; the mine now justifiably boasts having set, and operates according to, the world’s best practice.
However, now that all the evidence has been gathered and presented, the investigations are complete and the Coroner’s findings released, what are the legal lessons?
The Melick Inquiry
Immediately after the incident the Tasmanian Government commissioned a special investigation into all aspects of the Anzac Day rock fall, including:
- the cause of the seismic event that led to the rock fall
- the adequacy of processes and procedures established by the owners and operators of the mine and Workplace Standards Tasmania to ensure that the obligations imposed by the Workplace Health and Safety Act 1995 were adhered to
- the steps that should be taken by the owners and operators of the mine to ensure that the health and safety requirements of the Workplace Health and Safety Act 1995, including measures to prevent or lessen the risk of a repetition of the event or similar events, are maintained at the mine, and
- any matters that were incidental thereto.
These broad terms of reference meant that all aspects of the mines operations were probed including; mine design and development, mining methods and ground support design, standard operating polices and procedures, training, the mines risk management processes – particularly in respect of seismic risk and rock falls, as well as corporate managerial and administrative arrangements including whether being under administration had impacted negatively on the mines safety practices.
The investigation was headed by Greg Melick QC and assisted by a geotechnical and safety expert as well as forensic accountants. The Melick inquiry ran for approximately 14 months and resulted in the production of 1,131 documents including numerous geotechnical reports. The investigation also gathered 80,000 emails, more than 100 records of witness interviews as well as submissions from the mine, the AWU, the Knight Family and Workplace Standards Tasmania (WST).
The special investigation also had before it the 1800 page case for safety that was required to be prepared and submitted to WST for approval before mining could recommence at Beaconsfield. The rigorous case for a safety process itself was undertaken over two years by leading geotechnical experts and then subject to peer review.
The final Melick report (and its 55 annexures exceeding 1500 pages) which concluded that the magnitude and location of the event that caused the rock fall was unforeseeable, was submitted to the Coroner in September 2007.
Coroner’s Inquest and Findings
The subsequent coronial inquest ran for a further 9 weeks. The court heard from 37 witnesses, including mine employees, the senior management team, representatives from WST and 9 technical consultants – including the world’s preeminent expert in the area of rock mechanics.
The Launceston Magistrates Court had undergone significant renovations to accommodate the number of interested parties represented, and the volume of documentary evidence that would be led by them.
On 26 February 2009, Coroner Rod Chandler delivered his findings. Consistent with the conclusion reached by the Melick inquiry, the Coroner found that no person or corporation had contributed to Mr Knight’s death.
Legal Lessons Learned
The scale of the investigations into the Anzac Day rock fall was in part the consequence of the sheer quantity as well as the highly technical nature of the material under review.
It is inevitable that the documentation involved in any mining operation will be both voluminous and technically complex. A critical lesson from a legal risk management perspective is recognising that the documentation prepared now could be the subject of analysis in the future by investigators and courts unfamiliar with the areas of expertise, such as rock mechanics and seismicity, that are a standard part of the day to day operation of a mine.
What is to geologists, geotechs and mining engineers obvious and without need for further explanation, can be easily misunderstood by those unacquainted with the specialist subject matter.
Equally, topics that are well known in the industry to be uncertain or open to differences in expert opinion are at risk of being oversimplified by courts. For example, seismicity was an issue critical to both the investigation and subsequent inquest. Much time was spent attempting to determine whether the size and location of the seismic events that occurred on Anzac Day could have been predicted. Of course, it is well accepted in the industry that seismic events cannot be forecasted with that degree of precision. However, before this limitation could be accepted by investigators, and subsequently the Coroner, an enormous amount of background technical knowledge had to be laid before them.
Of course, courts are assisted by expert consultants in understanding technical matters. However, it can be very difficult for experts to give a retrospective opinion that is not tainted by the benefit of hindsight. In a safety context that ‘tainted opinion’ can lead to assumptions of legal responsibility that are difficult to shake.
It is crucial that the enormous amount of work undertaken by mines as part of their daily operations is accurately documented. Equally important is to ensure the information is conveyed and recorded in a way that is capable of being translated, retrospectively, to both experts and lay persons assessing the propriety of decisions made and actions taken on the basis of that information.
For that reason, what was actually known or understood at a given point in time is also crucial to an investigation into a mining or other workplace incident. Operators need to be mindful that all documentation including superseded versions of mine plans and operating procedures are dated so as to capture the actual state of knowledge at the time those documents were in use.
All emails should be drafted with caution, and due consideration given to their content. What in times passed would have been communicated formally by letter or internal memo, is now often conveyed for convenience, via email. However, the informal nature of emails means there is great potential for their content to be ambiguous and the tone lost so that later, the essence of the email is open to a number of interpretations by third parties. For that reason emails should be drafted with a view, that at anytime in the future, they may be scrutinised for meaning by an audience beyond the email’s intended recipient and in isolation from the context in which it was written.
It is essential to keep in mind that when workplace incidents occur, the role of an investigator is to step in and gather the available evidence and attempt to reconstruct the events leading up to the incident. The way a business has recorded those events becomes critical to the outcome of the investigation. While these cautions apply equally to all workplaces, they become ever more critical to industries such as the mining sector, where the subject matter is complicated, and the documentation is enormous.
One of the forensic successes of the legal investigation and subsequent outcome was the effective management of documents and translation of technical mining information to investigators, and later the Coroner, so that the mines story could be properly retold.