Dalliston v Taylor[2015] ICQ 17

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   The Peak Downs Mine is a large open cut coal mine in the Bowen Basin near Moranbah. It is operated by the second respondent (“BMA”).
2. [2]
   This case concerns the “suitability” of a particular class of light vehicle used by BMA in and about the mine.  The “suitability” of these vehicles is to be assessed against the requirements of the Coal Mining Safety and Health Act 1999 (“the Act”)^[1] and the Coal Mining Safety and Health Regulation 2001 (“the Regulation”)^[2].
3. [3]
   Mr Dalliston, the appellant, is an Industry Safety and Health Representative (“ISHR”) appointed under Part 8, Division 2 of the Act.
4. [4]
   Mr Taylor, the first respondent, was at the relevant time the Chief Inspector of Coal Mines appointed under Part 9, Division 1 of the Act.
5. [5]
   On 6 February 2013 Mr Dalliston issued a directive under s 167 of the Act which had the effect of preventing the use of the light vehicles at the mine.
6. [6]
   Mr Taylor, by a decision of 25 March 2013 (“the review decision”), set Mr Dalliston’s directive aside.
7. [7]
   Mr Dalliston appeals against that decision by Mr Taylor pursuant to s 243 of the Act. He seeks the following orders:

   1. (a)
      That the appeal be allowed;
   2. (b)
      That the review decision of Mr Taylor be set aside;
   3. (c)
      That the directive issued by Mr Dalliston be reinstated; and
   4. (d)
      That the Chief Inspector of Coal Mines issue a directive pursuant to s 172 of the Act that an independent engineering study be conducted to determine whether the new mobile plant introduced at the mine was of an engineered standard that was equivalent to or better than what was in place at the mine prior to the change.

Nature of the appeal

8. [8]
   Section 243 of the Act sets out who may appeal:

“243 Who may appeal

A person whose interests are affected by the following may appeal to the Industrial Court—

1. (a)
   a directive given by the chief inspector;
2. (b)
   a review decision of the chief inspector under part 9, division 5, subdivision 4.”

9. [9]
   Section 246 of the Act provides for hearing procedures:

“246 Hearing procedures

1. (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. (2)
   An appeal is by way of rehearing, unaffected by the chief inspector's review decision or a directive given.”

10. [10]
    Section 248 of the Act sets out the powers of this court on appeal:

“248 Powers of court on appeal

1. (1)
   In deciding an appeal, the Industrial Court may—

1. (a)
   confirm the directive or decision appealed against; or
2. (b)
   vary the directive or decision appealed against; or
3. (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
4. (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. (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. (3)
   The court may make an order for costs it considers appropriate.”

11. [11]
    The language used in s 246 is inconsistent.  For an “appeal by way of rehearing” to be successful it ordinarily requires that the original decision-maker be shown to have erred in law or fact.  But this section says that the appeal is to be “unaffected by the chief inspector's review decision” which would seem to be inconsistent with the ordinary understanding of an appeal by way of rehearing.
12. [12]
    This clumsiness of expression is to be found in other statutes. A similar provision was considered in De Tournouer v Chief Executive, Department of Environment & Resource Management^[3] where Fraser JA said that the expression meant that the appeal tribunal could “exercise afresh the statutory power”^[4].  In other words, section 246 uses a form of words which is more clearly understood as an appeal de novo. An appeal de novo involves a rehearing of the evidence by the appellate court.  It is analogous to a new trial.
13. [13]
    The parties were agreed that I should proceed as if this matter was, in effect, a trial by which the directive would be reviewed and that I need not have regard to the decision of the first respondent.
14. [14]
    The next consideration concerns onus.  Although this is, in effect, a hearing de novo, the orders sought by Mr Dalliston include setting aside the review decision.  In other words, Mr Dalliston is seeking to establish that his decision was correct and should be reinstated. But, the exercise I must embark on requires that I stand in the shoes of the Chief Inspector and exercise the power afresh.  In doing that, the question for this Court is determined by the provisions of the Act relating to acceptable levels of risk.  Thus, it is not a question of comparing what was in place but, rather, whether the replacement vehicles satisfy the Act so far as risk is concerned.

Background

15. [15]
    The Peak Downs mine site covers a large area, and in order for employees to be able to be in the right place at the right time a number of vehicles of the “king cab utility” type are used.  It was accepted by the parties that these light vehicles fall within the description of “mobile plant” as used in s 74 of the Regulation.  The types of light vehicles which had been in use at the mine site were a mixture of makes and models. All of them, though, had been modified by having a rollover protection system (“ROPS”) installed.  This took the form of a roll cage within the vehicle  or an external cage.  This modification was done on an ad hoc basis with the result that there was no common standard for ROPS on the light vehicles.  There was no evidence that any of the particular ROPS had been tested to determine their capacity to protect the occupants of a ROPS fitted vehicle.  There was evidence, though, as to the capacity of ROPS generally to provide protection.
16. [16]
    In 2012 BMA commenced a process by which all the light vehicles then being used at Peak Downs would be replaced by similar vehicles which were ANCAP 5 Star rated.  The difference in the vehicles (which was to lead to this appeal) is that the new vehicles would not be fitted with a ROPS.
17. [17]
    ANCAP is the acronym for Australasian New Car Assessment Program.  It is a program through which a vehicle’s capacity to withstand impacts can be tested.  A rating system is applied and 5 stars is the highest rating available.
18. [18]
    As part of the process of introduction of these vehicles BMA conducted a series of information meetings and consultations.  There is some dispute about the extent of the consultation but it is not a matter which was pursued in this case.
19. [19]
    On 6 February 2013, Mr Dalliston issued a directive under s 167 of the Act.  The directive read:

“I have reasonable belief that there is an unacceptable level of risk as a consequence of the mine changing the standards of protective structure as required for plant by s 74 Coal Mining Safety and Health Regulation 2001.

This has been confirmed by discussions with Mr Sean Milfull Site Senior Executive during discussions at the mine on Wednesday 6^th February in the company of SSHR A Large and Health Safety Manager Brett Lamont.

Chapter 2, Part 10, Division 2, Section 74 (Protective Structures) of the Coal Mining Safety and Health Regulation 2001 prescribes a way of achieving acceptable level of risk

74 Protective structures

1. This section applies to mobile plant used at a coal mine if the plant is assessed as being at risk of overturning or being struck by a falling object.
2. The site senior executive must ensure the plant is provided with a structure to protect a person using the plant from injury if it overturns or is struck by the object.

Section 29 of the Coal Mining Safety and Health Act 1999 states how to achieve ‘acceptable level of risk’.

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—

1. within acceptable limits; and
2. as low as reasonably achievable.

After reviewing all of the documentation provided by the mine which was used to change the standard of ‘protective structure’ on the new light vehicles I cannot find any evidence that the new standard in (sic) not equal to the standard of protection previously in place and hence I have a reasonable belief that this is not as low as reasonably achievable.  Therefor not meeting the definition of ‘acceptable level of risk’ as stated in s 29 CMSHA 1999.

Under my powers pursuant to s 119(1)(f) of the Coal Mining Safety and Health Act 1999, I hereby issue a directive under s 167 to stop the use of any mobile plant that is not protected by a protective structure shown to be of an equivalent (or better) engineered standard than in place at the mine prior to the change.

This written directive is a follow up of the verbal directive issued at the mine at approximately 3pm on Wednesday 6^th February 2013.”

20. [20]
    On the same day, Mr Milfull (the Site Senior Executive at Peak Downs) requested a review of the directive under s 175 of the Act.
21. [21]
    On 25 March 2013 Mr Taylor set aside the directive and gave his reasons for doing so. He concluded that:

    1. (a)
       “A 5 Star ANCAP rated vehicle will be less likely to be involved in a roll over incident compared to a 4 Star ANCAP rated vehicle fitted with an after-market ROPS.”
    2. (b)
       “A person travelling in a 5 Star ANCAP rated vehicle will be at less risk of injury in the event of a roll over compared to a person in a 4 Star ANCAP rated vehicle with an after-market ROPS.”
    3. (c)
       “A 5 Star ANCAP rated vehicle will be less likely to roll over and will provide better occupant protection than a 5 Star ANCAP rated vehicle fitted with an after-market ROPS device.”
22. [22]
    It is from that decision that this appeal has been brought.

Relevant legislative provisions

23. [23]
    The objects of the Act are found in s 6.  It provides:

“6 The objects of this Act are—

1. (a)
   to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and
2. (b)
   to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level; and
3. (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.”

24. [24]
    How those objects are to be achieved is set out in s 7.  So far as relevant, it provides:

“The objects of this Act are to be achieved by—

1. (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
2. (b)
   providing for safety and health management systems at coal mines to manage risk effectively; and
3. (c)
   making regulations and recognised standards for the coal mining industry to require and promote risk management and control; and

…

5. (e)
   providing for safety and health representatives to represent the safety and health interests of coal mine workers; and
6. (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

…”

25. [25]
    An acceptable level of risk is referred to in s 6(b). Section 29 defines 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—

1. (a)
   within acceptable limits; and
2. (b)
   as low as reasonably achievable.

2. (2)
   To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to—

1. (a)
   the likelihood of injury or illness to a person arising out of the risk; and
2. (b)
   the severity of the injury or illness.”

26. [26]
    Section 33 imposes obligations on various persons under the Act.  For example, a coal mine operator (such as BMA) or a site senior executive (such as Mr Milfull) have obligations under Div 3 of Part 3 of the Act.
27. [27]
    Section 37 sets out how such an obligation may be discharged if a regulation has been made. It provides:

“(1) If a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligation in relation to the risk only by following the prescribed way.

2. (2)
   If a regulation prohibits exposure to a risk, a person may discharge the person’s safety and health obligation in relation to the risk only by ensuring the prohibition is not contravened.
3. (3)
   Subject to subsections (1) and (2), if a recognised standard states a way or ways of achieving an acceptable level of risk, a person discharges the person’s safety and health obligation in relation to the risk only by—

1. (a)
   adopting and following a stated way; or
2. (b)
   adopting and following another way that achieves a level of risk that is equal to or better than the acceptable level.”

28. [28]
    The obligations of a site senior executive are contained in s 42:

“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—

1. (a)
   to ensure the risk to persons from coal mining operations is at an acceptable level;
2. (b)
   to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work by someone other than the site senior executive’s coal mine workers is at an acceptable level;

…”

29. [29]
    There are sections in the Regulation which are relevant to this matter.  Section 5 of the Regulation provides:

“5 Ways of achieving an acceptable level of risk

1. (1)
   This chapter, other than sections 47(3) and 52(1), prescribes ways of achieving an acceptable level of risk at a coal mine in the circumstances mentioned in the chapter.
2. (2)
   However, this chapter does not deal with all circumstances that expose someone to risk at a coal mine.
3. (3)
   A person may discharge the person’s safety and health obligation in the circumstances mentioned in this chapter only by following the prescribed ways.”

30. [30]
    Section 74 appears in the same chapter of the Regulation as s 5.  It applies to mobile plant and provides:

“74  Protective structures

1. (1)
   This section applies to mobile plant used at a coal mine if the plant is assessed as being at risk of overturning or being struck by a falling object.
2. (2)
   The site senior executive must ensure the plant is provided with a structure to protect a person using the plant from injury if it overturns or is struck by the object.”

Preliminary issues

31. [31]
    BMA raised two preliminary issues:

    1. (a)
       Mr Dalliston had no standing to bring this appeal; and
    2. (b)
       There was no basis for making the directive.

Did Mr Dalliston have standing to appeal?

32. [32]
    Section 243 of the Act provides for who may appeal:

“243  Who may appeal

A person whose interests are affected by the following may appeal to the Industrial Court—

1. (a)
   a directive given by the chief inspector;
2. (b)
   a review decision of the chief inspector under part 9, division 5, subdivision 4.”

33. [33]
    BMA submits that Mr Dalliston is not able to appeal on two bases:

1. (a)
   he does not have the requisite “interest” which has been affected, and
2. (b)
   he cannot be a competent appellant in respect of a review of his own decision.

1. (a)
   Does he have the requisite interest?

34. [34]
    BMA submits that Mr Dalliston is not a “person whose interests are affected by” the review decision.  Phrases similar to that in s 243 have been the subject of much consideration.  For example, the words “A person interested in a decision” appear in s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The words “interests” and “interested” are also used elsewhere in that Act when dealing with the issue of standing.  In United States Tobacco Company v Minister for Consumer Affairs ^[5] the Full Court of the Federal Court said:

“The words ‘interests’ and ‘interested’ are not used in ss 3 and 5 of the ADJR Act, respectively, as if they were mere terms of common parlance.  The term ‘interest' has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody.  Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one.  The broadest of technical terms has been selected.  The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person.”^[6] (emphasis added)

35. [35]
    The extent to which a person may have the necessary interest will depend upon an examination of the language of the particular statute.^[7]  It was put this way, by the majority, in Allan v Transurban City Link Pty Ltd^[8]:

“[15] The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth.  This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of
s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’.  ‘Standing’ is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.” (emphasis added)

36. [36]
    Subdivision 4 of Part 9 of the Act sets out the procedure for a review of a directive given by an ISHR. The following summarises those provisions:

    1. (a)
       Only a recipient of a directive may apply for its review (s 175).
    2. (b)
       The application must be made within 7 days (or up to two months afterwards if allowed) to

       1. the chief inspector, who

       1. must comply with other time limits, and who
       2. must, within 14 days:

       1. confirm the directive, or
       2. vary it or set it aside.
    3. (c)
       Within 7 days of making the review decision the chief inspector must notify the applicant of the decision.
37. [37]
    BMA made the following observations about that process:

    1. (a)
       There is no requirement for the ISHR to be notified of the application to review his decision.
    2. (b)
       There is no statutory right for the ISHR to be involved in the review process.
    3. (c)
       The process under s 176 only requires involvement of the chief inspector and the applicant for review.
    4. (d)
       Notice of the chief inspector’s decision is only required to be given to the applicant.
    5. (e)
       Section 177(4) requires the chief inspector, if the notice does not set aside the directive, to tell the applicant of its right of appeal against that decision.  There is no requirement to tell the ISHR of any “right of appeal” if the directive is set aside.
38. [38]
    There are other aspects which suggest that the review procedure does not contemplate any involvement by the ISHR, for example:

    1. (a)
       If the chief inspector does not consider that enough information has been supplied the chief inspector is directed by s 176(4) to advise the applicant of what further material is required.
    2. (b)
       Like the procedure leading to a directive, a review is not an adversarial process.
    3. (c)
       The time limits imposed by s 176(2) and (3) and s 177(1) and (3) demonstrate a clear intention that the review is to be conducted expeditiously.
39. [39]
    The statutory procedure does not contemplate that the maker of a directive has an “interest” in the outcome of a review.  Rather, the structure of the legislation lends itself to the conclusion that the actions by the ISHR and any subsequent review are no more than parts of a decision-making process.
40. [40]
    Mr Dalliston submits that he does have a relevant “interest” and points to those parts of the Act which define the work of an ISHR.
41. [41]
    One of the objects of the Act, set out in s 6, is to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations.
42. [42]
    Section 7(e) provides that one of the ways of achieving that object is by: “providing for safety and health representatives to represent the safety and health interests of coal mine workers”.
43. [43]
    Section 11 defines a person’s safety and health in this way:

“A person’s safety and health is the person’s safety or health, to the extent it is or may be affected by coal mining operations or other activities at a coal mine.”

44. [44]
    Section 27 defines an ISHR as:

“ … a person who is appointed under section 109(1) to represent coal mine workers on safety and health matters and who performs the functions and exercises the powers of an industry safety and health representative mentioned in part 8, division 2.”

45. [45]
    An ISHR is appointed, under s 109, by the Construction Forestry Mining and Energy Union—Mining and Energy Division Queensland District Branch.
46. [46]
    The risk of mobile plant overturning and the possible consequence of injury to a person using that plant is unarguably a “safety and health” matter and, thus, within the purview of an ISHR.
47. [47]
    Mr Dalliston argues that, as an ISHR represents workers in respect of safety and health matters, it must follow that an ISHR has the necessary interest in the review of a directive made by that ISHR.  After noting the assumption in s 243(b) that there will be a person whose interests are affected by a review decision the question is put, apparently rhetorically, in Mr Dalliston’s written submission:

“If that person is not the person whose directive is set aside, then who is that person?” ^[9]

48. [48]
    The answer to that question is: any person at the mine who could use, or be a passenger in, the light vehicle.  Such a person would have a clear interest in his or her own personal safety.
49. [49]
    That there are persons who would have the necessary interest does not, of itself, disqualify the ISHR.  Representatives have been found to have the necessary interest in other circumstances.  In Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA)^[10] the High Court held that the union had the standing to apply for certain orders because its members who were shop assistants had a special interest in the trading hours of shops in which they were employed.  But that decision and others which consider whether a representative has the necessary interest (such as Executive Council of Jewry v Scully^[11]) concerned entities or individuals which were representative of persons aggrieved because those persons were members of the particular entity.
50. [50]
    The role of an ISHR differs from that of a union.  While the ISHR is a representative, it is for the purposes limited by the Act which are set out in Part 8 Division 2.  And, while an ISHR may make a directive, so may others.  An inspector or an inspection officer may also give a directive under s 167 of the Act.
51. [51]
    The role of an ISHR differs from a decision maker in an ordinary administrative context. An ISHR is specifically required to be concerned about the safety and health of workers and it is an ongoing role. The ISHR maintains a continuing interest in the safety of workers at the mine. Such a person is not an intermeddler or a busybody.   It is consistent with the objects of the Act that an ISHR be able to pursue, within the limits of the Act, safety and health concerns which are reasonably held by such a person.  That means that an ISHR has the standing to appeal the review in this case.

2. (b)
   Can he be a competent appellant in respect of a review of his own decision?

52. [52]
    BMA argues that Mr Dalliston is not able to appeal the review decision on the basis of the statements in R v Australian Broadcasting Tribunal; ex parte Hardiman^[12] where the Court signalled its disapproval of the active role taken by the Tribunal in the appeal process:

“There is one final matter.  Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument.  In cases of this kind the usual course is for a tribunal to submit to such order as the court may make.  The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage.  If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.  The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the of the Tribunal.”^[13]

53. [53]
    The extent of the “prohibition” is not entirely clear, but it has been applied to bodies exercising adjudicatory powers (which an ISHR does not) and to tribunals exercising regulatory powers.  In all cases, the concern which is at the basis of the principle is that, by taking part in further proceedings, a tribunal or other decision maker “endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted”.  That risk does not arise in an appeal from a review decision.
54. [54]
    Section 248 of the Act sets out the powers of this Court on an appeal from a directive or a review decision:

“(1) In deciding an appeal, the Industrial Court may—

1. (a)
   confirm the directive or review decision appealed against; or
2. (b)
   vary the directive or review decision appealed against; or
3. (c)
   set aside the directive or review decision appealed against and make a directive or decision in substitution for the directive or review decision set aside; or
4. (d)
   set aside the directive or review decision appealed against and return the issue to the person who gave the directive or to the maker of the review decision with directions the court considers appropriate.

2. (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. (3)
   The court may make an order for costs it considers appropriate.”

55. [55]
    The power to “return the issue” in s 248(1)(d) is confined.  It does not allow, in an appeal against a review decision, for the issue to be returned to the person who gave the directive. The powers in s 248 should be read distributively so that the power to return only applies to the person against whose decision an appeal is brought. 
56. [56]
    Another matter which removes this case from the Hardiman principle is that an ISHR is not required to afford procedural fairness when making a decision to issue a directive.  A useful article on this topic – The Hardiman Principle: Revisited by Nicholas Gouliaditis^[14] – considers a number of authorities^[15] and concludes that:

“The combined effect of these decisions is that the Hardiman principle (or something analogous to it) will apply where an administrative decision-maker is required to accord procedural fairness, the application for relief raises the prospect of remitter, and either:

• there is a contradictor present prepared to oppose the claim for relief;  or
• the public interest warrants intervention by the Attorney-General (or other law officer or public official).”^[16]

57. [57]
    While it is unnecessary to decide whether that formula is a complete representation of the effect of the principle, it is the case that an ISHR is not required to accord procedural fairness and that an appeal to this court cannot result in a remitter to the ISHR.  Those two matters remove the ISHR from the consequences of Hardiman and so no question of its effect arises in this case. The ISHR is a competent appellant.

Was there a basis for making the directive?

58. [58]
    The operative part of the directive issued by Mr Dalliston was:

“Under my powers pursuant to s 119(1)(f) of the Coal Mining Safety and Health Act 1999, I hereby issue a directive under s 167 to stop the use of any mobile plant that is not protected by a protective structure shown to be of an equivalent (or better) engineered standard than in place at the mine prior to the change.”

59. [59]
    BMA argues that s 167 does not allow such a directive to be made.  It contends that the direction was invalid because, among other things:

    1. (a)
       it did not purport to stop operations, but purported to stop the use of mobile plant which did not have certain characteristics, and
    2. (b)
       it included a requirement to meet a condition for the continued operation of the mine, when there was no power to do so.
60. [60]
    In order to understand the extent of the power bestowed by s 167 it will assist if it and some associated sections are set out:

“166 Directive to reduce risk

1. (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. (2)
   The directive may be given orally or by notice.
3. (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. (4)
   Failure to comply with subsection (3) does not affect the validity of the directive.

167  Directive to suspend operations for unacceptable level of risk

1. (1)
   If an inspector, inspection officer or industry safety and health representative believes risk from coal mining operations is not at an acceptable level, the inspector, officer or representative may give a directive to any person to suspend operations in all or part of the mine.
2. (2)
   The directive may be given orally or by notice.
3. (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. (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.

169  Directive to suspend operations for ineffective safety and health management system

If an inspector believes there is not an effective safety and health management system for a coal mine or part of a coal mine, the inspector may give a directive suspending operations in all or part of the mine.” (emphasis added)

Can a s 167 directive suspend the use of light vehicles?

61. [61]
    These four sections give different powers, to be exercised under different levels of belief, by different people.  An inspector can give a directive under each section, an inspection officer under two and an ISHR under s 167 only.
62. [62]
    Under s 166 an inspector may direct that corrective or preventative action be taken. That is, a directive can require a person to do something to prevent a risk reaching an unacceptable level.  Similarly, under s 168 an inspector can direct that particular action – a review of the safety and health management plan – be undertaken.
63. [63]
    On the other hand, s 167 and s 169 only allow for a directive which suspends operation. In other words, these sections can only lead to the prevention of action rather than the taking of action.
64. [64]
    In Construction, Forestry, Mining & Energy Union v Lyne & Anor^[17] McMurdo J considered the ambit of s 167 and held that the power conferred by s 167(1) to “suspend operations” included a power to suspend any operation. It followed, in his view, that s 167(1) authorised a directive suspending some but not all of the activities constituting coal mining operations as that term is used in the Act.^[18]  I respectfully agree.
65. [65]
    The Act defines “coal mining operations” in this way:

“coal mining operations means activities, including on-site activities, carried out at a coal mine that are associated with the following in relation to coal or coal seam gas—

1. (a)
   exploration;
2. (b)
   extracting;
3. (c)
   the processing and treatment;
4. (d)
   installing and maintaining equipment used for extraction, processing and treatment.”

66. [66]
    So far as is relevant, the term “on-site activities” is defined in this way:

“10 Meaning of on-site activities

1. (1)
   On-site activities are activities carried on principally for, or in connection with, exploring for or winning coal and include the following—

1. (a)
   constructing—

1. (i)
   things required or permitted to be constructed under an exploration permit, mineral development licence or mining lease; or
2. (ii)
   for a place mentioned in section 9(1)(c)—things that are required or permitted to be constructed under an exploration permit, mineral development licence or mining lease;

2. (b)
   treating coal and disposing of waste substances;
3. (c)
   rehabilitating of a place after coal mining operations;
4. (d)
   maintaining and testing plant, equipment or machinery.

67. [67]
    BMA argues that the word “associated” in the definition of “coal mining activities” should be construed so that it requires more than just a loose or distant connection between things.  Further, it is submitted that the word “equipment” is confined to the installation and maintenance of equipment which is used for extraction, processing or treatment and, as such, there is an absence of any indication that that the use of equipment other than for extracting etc is within the ambit of coal mining operations.
68. [68]
    It is unnecessary to complicate matters by considering whether the use of mobile plant is an on-site activity.  The broader term is, simply, “activities”.  The questions to be asked in this context are:

    1. (a)
       Is the driving (use) of these vehicles an activity?

Yes.

2. (b)
   Does the activity take place at a coal mine?

Yes.

3. (c)
   Is the use of vehicles to transport employees (who are engaged in exploration, extracting, the processing and treatment, or installing and maintaining equipment used for extraction, processing and treatment of coal) an activity associated with exploration, extracting, the processing and treatment, or installing and maintaining equipment used for extraction, processing and treatment of coal? 

The vehicles are used to transport employees to their place of work, from their place of work and between their places of work.  Extraction, processing etc could not take place without the involvement of employees.  It must follow that the use of these vehicles in this way is an activity associated with extraction and so on.

69. [69]
    On the basis that the use of the light vehicles is an activity then, applying the construction adopted in CFMEU v Lyne, it is an activity which may be suspended under a s 167 directive.

Can a s 167 directive be subject to a condition?

70. [70]
    Section 167 is not prescriptive as to the form a directive must take.  This may, at least in part, be due to the need for expedition which often accompanies safety problems.  It does not, for example, set any time limit on the suspension that may be imposed or any formula for calculating the length of a suspension.  It may be inferred from the words of s 167 that the suspension could last at least as long as the ISHR believed the risk from coal mining operations was not at an acceptable standard.
71. [71]
    The Act does not provide for any automatic mechanism such as, say, the effluxion of a period of time to bring the suspension to an end.  But, at least, the words of s 167 suggest that a directive will identify the risk identified by the ISHR. Section 167(3) requires that an ISHR identify, in writing, the part of the mine (if the whole mine is not affected) which is affected by the directive.
72. [72]
    A directive can be brought to an end in two ways:

    1. (a)
       It can be repealed (or amended) by the ISHR.

A directive is the manifestation of a decision that the relevant risk is not acceptable. It must be put in writing and, upon that happening, it becomes a “document” within the meaning of the Acts Interpretation Act 1954. Such a document is an “instrument” within the meaning of that Act and the ISHR has the power bestowed by s 24AA of that Act:

“If an Act authorises or requires the making of an instrument or decision—

1. (a)
   the power includes power to amend or repeal the instrument or decision; and
2. (b)
   the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.” 

2. (b)
   It can be set aside (or varied) by the Chief Inspector under s 177 of the Act.

73. [73]
    The directive did not explicitly suspend the use of the new light vehicles but applied to “any mobile plant that is not protected by a protective structure shown to be of an equivalent (or better) engineered standard than in place at the mine prior to the change.” This amounts to a suspension subject to conditions, that is, that only mobile plant which satisfy the conditions will be able to be used.
74. [74]
    There are many problems with this form of directive. It appears to require at least three things. The vehicle must be protected by:

    1. (a)
       a protective structure, which
    2. (b)
       is shown to be
    3. (c)
       of an equivalent or better engineered standard than that which was in place prior to the change.
75. [75]
    The terms are inexact.  It does not say what a “protective structure” is, only what it must be, that is, “of an equivalent or better engineered standard than that which was in place prior to the change”.  But there is no mechanism for assessing that criterion nor is there any hint as to who must be “shown” that the condition is met.
76. [76]
    The effect of the directive is not to suspend the use of all light vehicles but only those which do not meet some ill-defined characteristics.
77. [77]
    Section 167 is blunt in its effect – a directive can suspend operations.  The question is: does the power to suspend include a power to subject the suspension to a condition?
78. [78]
    In Johns v Australian Securities Commission^[19], Brennan CJ said:

“An authority conferred by statute is construed as authorizing everything which can fairly be regarded as incidental to or consequential upon the authority itself. … Therefore it is within the competence of the A.S.C., as a condition of disclosing information to a State agency, to impose a restriction on the use or further disclosure which the agency may make of the information disclosed.”^[20]

79. [79]
    In the same case, McHugh J said:

“… s. 127(4) contains no express power to impose conditions. But it is a discretionary power, and the discretion can be exercised by requiring the recipient of the information to comply with specified conditions.  The scope of a statutory power is ascertained ‘by the character of the statute and the nature of the provisions it contains’.  When the exercise of a power is left to the discretion of some person, the scope for implementing the power is fettered only by the necessity to maintain consistency with the purpose or purposes of the legislation.  Consequently, the repository of the power may impose conditions on those affected by the exercise of the power as long as the conditions are not inconsistent with the purpose for which the power is granted.”^[21]

80. [80]
    It is argued by BMA that the absence of words allowing the imposition of a condition is telling in the context of s 167.  Section 166 specifically allows an inspector to “give a directive to any person to take stated corrective or preventative action”.  Such a directive could include the use of equipment with identified characteristics.  The absence of such a power in s 167, BMA argues, compels the conclusion that a “directive” containing conditions such as those in this case is not a directive which is able to be made under
    s 167.
81. [81]
    I do not agree.  Section 167 is contained within a statute which has, as one of its purposes, the protection of the safety and health of persons at a coal mine.  It would be inconsistent with that purpose to construe s 167 as being a power unable to be moulded to fit the circumstances.  A suspension might, for example, be conditioned to end when particular circumstances such as a flood had abated.  If the condition is consistent with the purposes of the legislation then it will, ordinarily, be valid.
82. [82]
    In this case, the condition is vague and uncertain.  It does not say how any other equipment can be “shown” to be appropriate.  It does not say who is to be shown that this standard has been reached.  It does not say how the quality of any new equipment is to be assessed. A condition of this kind might be valid if expressed in a comprehensible way.  But this one is not.  A recipient of the directive cannot tell how to satisfy the condition and, in those circumstances, the condition is not valid.  As the directive is premised on the condition, the directive cannot be valid.

Does use of the new vehicles constitute an acceptable level of risk?

83. [83]
    An error which pervaded the directive given by Mr Dalliston and, to an extent, the manner in which this appeal was conducted, arose out of the comparison made between the vehicles with ROPS which had previously been used and the proposed vehicles.  The question to be answered when considering the use of new mobile plant is whether it constitutes an acceptable level of risk.  Unless it can be demonstrated that the vehicles being replaced exhibited the bare minimum of acceptable risk the question is not whether the new vehicles are as safe as or safer than those they replace.  No party argued that vehicles fitted with ROPS did constitute the bare minimum necessary for safety.  It is possible that two types of vehicle will each demonstrate an acceptable level of risk but that one will have characteristics which make it identifiably safer than the other.  Prudence might dictate using the safer vehicle but the Act does not require that.
84. [84]
    An “acceptable level of risk” is defined in s 29 of the Act:

“What is an acceptable level of risk

1. (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—

1. (a)
   within acceptable limits; and
2. (b)
   as low as reasonably achievable.

2. (2)
   To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to—

1. (a)
   the likelihood of injury or illness to a person arising out of the risk; and
2. (b)
   the severity of the injury or illness.”

85. [85]
    Section 33 imposes obligations on various persons under the Act.  For example, a coal mine operator (such as BMA) or a site senior executive (such as Mr Milfull) have obligations under Div 3 of Part 3 of the Act.
86. [86]
    Section 37 sets out how such an obligation may be discharged if a regulation has been made.  It provides:

“(1) If a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligation in relation to the risk only by following the prescribed way.

2. (2)
   If a regulation prohibits exposure to a risk, a person may discharge the person’s safety and health obligation in relation to the risk only by ensuring the prohibition is not contravened.
3. (3)
   Subject to subsections (1) and (2), if a recognised standard states a way or ways of achieving an acceptable level of risk, a person discharges the person’s safety and health obligation in relation to the risk only by—

1. (a)
   adopting and following a stated way; or
2. (b)
   adopting and following another way that achieves a level of risk that is equal to or better than the acceptable level.”

87. [87]
    The obligations of a site senior executive are contained in s 42:

“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—

1. (a)
   to ensure the risk to persons from coal mining operations is at an acceptable level;
2. (b)
   to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work by someone other than the site senior executive’s coal mine workers is at an acceptable level;

…”

88. [88]
    There are sections in the Regulation which are relevant to this matter. Section 5 of the Regulation provides:

“5 Ways of achieving an acceptable level of risk

1. (1)
   This chapter, other than sections 47(3) and 52(1), prescribes ways of achieving an acceptable level of risk at a coal mine in the circumstances mentioned in the chapter.
2. (2)
   However, this chapter does not deal with all circumstances that expose someone to risk at a coal mine.
3. (3)
   A person may discharge the person’s safety and health obligation in the circumstances mentioned in this chapter only by following the prescribed ways.” (emphasis added)

89. [89]
    Section 74 appears in the same chapter of the Regulation as s 5. It applies to mobile plant and provides:

“74  Protective structures

1. (1)
   This section applies to mobile plant used at a coal mine if the plant is assessed as being at risk of overturning or being struck by a falling object.
2. (2)
   The site senior executive must ensure the plant is provided with a structure to protect a person using the plant from injury if it overturns or is struck by the object.” (emphasis added)

90. [90]
    BMA contends that the “risk” needs to be identified and that there is no warrant for limiting the risks to consideration of rollovers.  That can, as a general proposition, be accepted.  But, there is an explicit directive to the Site Senior Executive to “ensure the plant is provided with a structure to protect a person using the plant from injury if it overturns or is struck by the object”.  It is that requirement which was at the centre of the debate in this case and I turn to its proper construction now.
91. [91]
    The first element to consider is whether s 74 of the Regulation does apply.  Section 74(1) provides that the section applies if the plant is assessed as being at risk of overturning or being struck by a falling object.  Exhibits 3 and 4 are Workplace Risk Assessment and Control Forms.  In each of those forms the risk of rollover (or overturning) is assessed as being a possible cause of injury to the occupants of an ANCAP 5 Star vehicle.  In each case a rollover in an ANCAP 5 Star vehicle is assessed as “unlikely” while the same risk for a non-ANCAP 5 Star vehicle is assessed as “possible”.  In any event an assessment was made and no one submitted that s 74 did not apply.
92. [92]
    The second element is the requirement in s 74(2) that the Site Senior Executive “must ensure the plant is provided …”.  In an action for damages for negligence the meaning of this phrase might be important, but not here.  Mr Dalliston says that the plant is not provided with the relevant structure and the issue is whether that assertion is correct or not.
93. [93]
    The third element is the meaning of the term: “provided with a structure”.  Section 74 is intended to apply to all types of “mobile plant” which would include any vehicle.  Vehicles are used to perform many tasks at coal mines from transporting people to transporting coal to graders, tractors, front end loaders and more.  The term “structure” will not mean the same thing for each type of plant.  It could mean an additional piece of equipment added to the vehicle (such as a ROPS) or, as I find in this case, equipment which forms an integral part of the vehicle – the “safety cell” of the Ford Ranger.
94. [94]
    The fourth element is the word “protect”.  Neither the Act nor the Regulation attempt to produce a work environment in which each worker is immune from injury.  While s 6(a) of the Act defines one object of the Act as being to “protect the safety and health of persons at coal mines”, the next object in s 6(b) is “require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level”.  The latter object recognises that risk of injury cannot be completely removed.  Similarly, to read “protect” in s 74 as being of an absolute nature would be inconsistent with the recognition throughout the legislation that risk can be reduced but not abolished.  Mr Hinson QC (who appeared for Mr Dalliston) accepted that “protect” should not be read literally but should be read as: “protected against risk of injury, that is within acceptable limits, and is as low as is reasonably achievable.”  That definition is consistent with the objects of the Act and the context in which risk is dealt with elsewhere in the Act and Regulation.
95. [95]
    The argument for Mr Dalliston was that the new vehicles did not satisfy that requirement and, for that reason, did not demonstrate an acceptable level of risk.

The expert evidence

96. [96]
    Five experts gave evidence, concurrently, based upon their own reports and on a joint report. They were:

    1. (a)
       Dr Shane Richardson, an engineer with extensive experience in crash testing and crash analysis.
    2. (b)
       Dr Paul Bignell, an engineer with extensive experience in vehicle protection systems.
    3. (c)
       Mr Keith Simmons, who holds post-graduate qualifications in technology management with extensive experience in vehicle safety research programmes.
    4. (d)
       Dr Mark Fountain is employed by the Ford Motor Company of Australia as a manager and engineer.  He was responsible, during the development of Ford Ranger, for the analytical and physical aspects of its crash safety design.
    5. (e)
       Mr Colin Jackson is an engineer employed by the New South Wales Department of Transport, Roads and Maritime Services.  In 2012, at the request of BHP Billiton he conducted tests to assess the crashworthiness of a 2006 Toyota Hilux fitted with internal ROPS and the corkscrew rollover crashworthiness of a similar vehicle both with and without internal ROPS.
97. [97]
    In their joint report the experts were agreed on a number of matters and, in some cases, one or more of them made additional comments on particular items.

98. [98]
    One conclusion which may be drawn from all of the expert evidence was encapsulated in Mr Dalliston’s written submissions in this way:

“The consensus of expert opinion is that rollovers are complex and chaotic events, taking a variety of forms and involving unpredictable injury outcomes and a variety of different injury mechanism.”^[22]

99. [99]
    Other general matters which may be drawn from their evidence are:

    1. (a)
       The term “vehicle safety” is a term that can be used to describe the synergistic effect of a vehicle’s active and passive safety systems that together reduce the risk of a crash occurring and mitigate the consequences of any crash that does occur.
    2. (b)
       A problem faced by all the experts was that there is no internationally agreed standard, protocol or test criteria for measuring rollover crash worthiness.
    3. (c)
       There is no agreed standard or test criteria for after-market ROPS fitted to light vehicles.
100. [100]
     The ANCAP procedures do not include a measure of rollover occupant protection in their safety rating system. ANCAP, though, has determined occupant protection in rollover crashes is provided by safety systems already incorporated in 5 Star rated vehicles.
101. [101]
     The following matters were agreed by the experts:

     1. (a)
        5 Star safety rated vehicles are safer than vehicles with lower star safety ratings.
     2. (b)
        Electronic Stability Control (ESC) is required to be fitted in order to attain a 5 Star safety rating.  It will reduce the number of rollover crashes but will not eliminate them.
     3. (c)
        Addition of an after-market ROPS will increase rollover propensity.
     4. (d)
        Rollover protection should be considered in terms of a “system” rather than purely a structure.  The elements of the system and their role and contribution to occupant protection are still not well understood or defined as functional criteria.
102. [102]
     So far as the idea of a “system” is concerned, Dr Richardson said this:

“My personal position, and what I’ve put forward, both in my PHD thesis, and in other papers I’ve written, is that rollover propensity is a combination of both the stability factor of the vehicle, and the way in which the vehicle handles.   So it’s a combination of how wide the tracks – track width of the vehicle, and how high the centre of gravity is, but it’s also a function of the tyres that are put on it, the suspension that’s put on the vehicle, and how it rolls.  How it actually rolls when it’s being driven.  And that difference in terms of how the vehicle handles.  My premise is that the vertical axis, or why you get distribution in the vertical range, is that that’s part of the handling characteristic of the vehicle that’s coming into play. 

People that design a good vehicle that handles well are less likely to get it out of control.  Vehicles that are less likely to get out of control, are less likely to encounter tripping mechanisms to roll over.”^[23]  (emphasis added)

103. [103]
     On other issues there was disagreement or different views as to the meaning which can be ascribed to certain ratings and other tests.
104. [104]
     So far as ANCAP safety ratings are concerned, Dr Richardson said that no current or future planned tests measure the level of safety in a rollover, and that there is no published research which demonstrates that just because a vehicle has a good ANCAP rating it will also have a good rollover protective structure.  Mr Simmons did not agree with that and said that whether a structure provides adequate safety can be determined by how well a vehicle performs in the ANCAP test battery.
105. [105]
     Dr Fountain, whose experience with the Ford Ranger was greater than any other expert because of his involvement in its development, said that the Ford Ranger’s body structure was designed to work in concert with the vehicle’s restraint system to help provide a reasonable level of occupant protection in a wide range of crash modes, including rollover tests.  He said that the Ranger’s high strength and frame structures perform a fundamental role in managing and dissipating the crash energy in a wide range of crash modes.  He agreed that the ANCAP tests do not cover the complete range of crash conditions but said that the Ford Ranger ANCAP score of 35.72 points (out of a possible maximum 37) provides a reasonable indication of the high safety performance of the vehicle.
106. [106]
     The experts were not in agreement on whether the ANCAP crash tests could be used as a proxy measure of rollover safety.  Dr Richardson referred to the absence of any research which would justify that conclusion but did not deny that it was possible for the ANCAP test to be used as a proxy measure of rollover safety.
107. [107]
     Dr Bignell said that the current ANCAP testing procedures do not provide sufficient testing to definitively determine the performance of a vehicle during a rollover.  While Mr Simmons appeared to agree with that, he went on to say that the combined effect of restraints, structure and padding that are used to determine protection in other crash types have been shown to provide good rollover protection in both crash testing and in population studies.
108. [108]
     The experts were not in complete agreement about the relevance of the strength to weight  ratio (SWR).  This is a ratio used to determine a vehicle’s roof strength.  Dr Bignell says that a vehicle with insufficient roof strength will significantly deform during a rollover and not absorb sufficient energy to protect the passengers.  It was, of course, accepted that this is not as relevant for a rollover in which the vehicle is never on its roof, that is, a situation where a vehicle simply rolls onto its side.
109. [109]
     Dr Richardson disagreed with Dr Bignell.  He said the SWR can be used as an indicator of rollover protection provided it is considered in combination with effective restraints which are most likely to be provided in a 5 Star ANCAP vehicle.
110. [110]
     Mr Simmons referred to recent studies which, he said, demonstrated that the traditional reliance solely on SWR as a measure of rollover protection is flawed.  The studies to which he referred demonstrated that vehicles with roof strengths higher than 4.0 could still produce significant risk of fatal or serious injuries while vehicles with roof strengths well below 4.0 could produce crash outcomes that were non-injurious.
111. [111]
     Dr Fountain agreed, in part, with Mr Simmons.  It was his opinion that there is no established relationship between roof SWR value and occupant injury.  He went on to say that a rollover, with all the added complexities created by the extreme variability in vehicle motion and the motion of the occupant within the vehicle, can be replaced by a simple quasi-static test, is not supported by an objective evidence.
112. [112]
     The issue of installation of after-market ROPS was the subject of consideration by the experts.  Although as I have said above, the exercise required by the legislation is not a comparison of what exists and what is proposed, the directive did speak of vehicles with ROPS and so it is appropriate to direct some attention to that matter.  The experts considered the following proposition – the addition of after-market “safety” devices which have not been designed and validated thoroughly may have unintended consequences for aspects of other vehicle safety.  The reference to after-market “safety” devices was, for the purposes of this case, confined to internal ROPS or external ROPS. Dr Richardson agreed with the general statement because the testing which is done by vehicle manufacturers is done with respect to the vehicle as manufactured not as modified.  There are a number of matters which an internal or external ROPS must satisfy before installation could be considered.  They include the capacity to allow appropriate movement within the vehicle, movement in and out of the vehicle, the safe operation of seat belts, airbags and other static safety items, and to remain within the operational mass envelope of the vehicle.  Mr Simmons was of the view that an external ROPS, because it has the effect of increasing the major radius of a vehicle, may result in more severe impacts at each quarter turn in a rollover and, thus, result in increased injury risk to occupants.  He contrasted this with roof structures that can create a slight dome shape which, by deforming slightly in the impact, allow the vehicle to roll smoothly and minimise the severity of internal impacts.  Dr Fountain was adamant that after-market “safety” devices should not be added to Ford Ranger vehicles in the absence of full design development work being performed.  This would entail extensive simulated and physical crash testing.
113. [113]
     Another matter considered with respect to the fitting of after-market ROPS was whether such additions affected the overall level of occupant safety.  Dr Richardson agreed that it did but that the effect was undefined and could be negative or positive.  Dr Fountain, in restricting his comments to the Ford Ranger, said that an after-market ROPS would raise the centre of gravity and thus increase the risk of rollover; pose a serious risk to the intended function and effectiveness of the safety systems of the vehicle; and provide no quantifiable or demonstrable benefit in injury risk reduction in a rollover.
114. [114]
     It was submitted, on behalf of Mr Dalliston, that:

     1. (a)
        A properly designed and fitted ROPS can absorb crash impacts in a rollover and protect the occupants of a vehicle from injury; and
     2. (b)
        A vehicle without a ROPS may suffer a crushing deformation to the roof and thus cause injury to an occupant.
115. [115]
     A substantial part of the appellant’s submission, in this area, dealt with the relevance of roof strength in a rollover.  While it was acknowledged that roof strength was but one element in rollover protection, the SWR of a Ford Ranger is 2.19 and on an international rating system it is regarded as “poor” where a score of 4 or more is good.  It was submitted that the Ford Ranger roof strength is a contributor to the safety cell’s capacity to protect against injury in a rollover, particularly in the absence of any rollover testing, of a Ford Ranger.
116. [116]
     It was also submitted that the ANCAP crash tests could not be confidently relied upon as a proxy measure of rollover safety.
117. [117]
     Finally, it was submitted that the original directive was issued on the basis of an absence of evidence demonstrating that the use of ANCAP 5 Star rated light vehicles without ROPS was equivalent to or better than the protection provided by fitting ROPS to light vehicles.  Mr Dalliston submitted that there was still no evidence to demonstrate that point and thus the directive was properly issued.  In the absence of such evidence, it was submitted, the review decision should be set aside.
118. [118]
     BMA approached its submissions by considering first the likelihood of a rollover.  The ESC installed in the Ford Ranger vehicles reduces the likelihood of a rollover occurring.  It must be acknowledged that there will be occasions on which the ESC will be inoperative because it is automatically turned off when low range is engaged in the four wheel drive vehicle.
119. [119]
     On the other hand, BMA submits that a vehicle fitted with ROPS is more likely to roll over because the centre of gravity is made higher.  There was debate amongst the experts about this issue.  It was said, in particular, that the centre of gravity of a vehicle is raised when people get into it or when a load is placed in the tray.  That, of course, must be accepted.  But, the evidence was that these vehicles are designed to operate with a full load of passengers and a load in the tray. There is no design capacity envisaged for the addition of ROPS.  It was accepted that a vehicle with ROPS and a load has an increased rollover risk from both of those factors and, thus, a greater amount of the margin of safety is used up because of the addition of a ROPS.  Dr Fountain gave evidence that adding a ROPS is within the Ford’s operating guidelines but that it constitutes an extra rollover risk.
120. [120]
     Mr Simmons raised the point that, while the addition of ROPS to a vehicle may increase slightly the potential for rollover of that vehicle, one must, when assessing risk, take into account that there are a large number of vehicles and the addition of ROPS to each of them magnifies the chances of rollover occurring on a mine site.  This is a point which has substance. When considering acceptable levels of risk, it is appropriate to consider it not only with respect to the individual item, but also with respect to the increase in the overall level of risk which may be occasioned by many vehicles having a slightly increased risk.

Does the use of the Ford Ranger come within an “acceptable level of risk”?

121. [121]
     Section 31of the Act provides that an acceptable level of risk is reached when the risk is:

1. (a)
   within acceptable limits; and
2. (b)
   as low as reasonably achievable.

122. [122]
     It was not suggested that the risk involved in the use of the Ford Ranger was not within acceptable limits.  The way in which the case was conducted was, as I have observed, more concerned with comparison than with assessment of the level of risk.  Nevertheless, the question of whether the risk is as low as reasonably achievable can be answered.
123. [123]
     Much of the evidence was concerned with the likelihood and consequences of a rollover. This was generated by the requirement in s 74 of the Regulation.  But it is not the only factor to consider when assessing the level of risk.  One area of importance is the environment in which the vehicles are employed.  The evidence supports a conclusion that this mine site has strict controls on: who may drive, where they may drive, when they may drive, at what speed they may drive, and for what purpose. Drivers can communicate with each other by radio and warnings of any danger can be given to drivers by this means. Safety should be assessed against that background.
124. [124]
     Other matters need to be considered when considering risk. In his report, Mr Simmons outlined some fundamental principles of occupant protection in motor vehicles.  They include:

     1. (a)
        The occupant compartment should contain its occupants and should not collapse under reasonable or expected conditions of force;
     2. (b)
        The materials that surround and shield the occupant compartment should be capable of resisting crash forces by yielding and absorbing energy;
     3. (c)
        Vehicle occupants should be restrained within the occupant compartment to prevent the second collision, that is, injurious impact with the interior of the occupant compartment; and
     4. (d)
        Padding must be provided for parts of the compartment that the occupant might strike.
125. [125]
     If the question of the vehicle overturning is put to one side, the Ford Ranger clearly satisfies all those requirements and satisfies them to a high standard.
126. [126]
     That examination brings the consideration back to the matter of the vehicle possibly overturning.  While there was no agreement on whether there was a demonstrable relationship between the strength of a roof of the vehicle and injury to passengers, there is sufficient to suggest that there is some form of correlation between the strength of a roof and the possibility of injury to the occupants of the vehicle.  As Dr Bignell pointed out in the joint report the  SWR can only be used as a guide to assess roof strength because there is no agreed testing procedure in existence at this time.  None of the experts could agree on a precise range of SWR which would provide an acceptable level of risk or the precise effect of this on occupant protection.  Indeed, Mr Simmons referred to recent studies which demonstrated that there is an increase in different types of injuries in cases where the vehicles had a particularly strong roof structure.  While it should be emphasised that there is nothing conclusive about this, it does demonstrate that roof strength may not be the conclusive feature which some apparently regard it as being.  One of the features which commended itself to Dr Fountain, Mr Simmons and a witness called by the first respondent (Mr Smith) was that the A, B and C pillars in the Ford Ranger had been strengthened substantially when compared to the earlier model of that vehicle.  Those strengthened pillars contributed to what was described as the hoops which formed the safety cell for the vehicle.
127. [127]
     Other evidence which is of importance in assessing risk is the history of vehicles and the number of roll-over incidents which have occurred.  So far as BHP Billiton Group mine sites are concerned 19 incidents of light vehicles overturning were recorded as having occurred between 1 July 2008 and 1 September 2011.  There were no fatalities and few serious injuries.  All the rollovers involved light vehicles which did not have ESC installed.  Mr Dalliston gave evidence of eight rollovers occurring in the period 8 April 2014 to 24 August 2014.  Of those, according to Mr Smith’s examination of the documents, only one involved an ANCAP 5 Star rated vehicle and the incident consisted of the Ford Ranger rolling onto its side with no injuries being sustained. 
128. [128]
     Mr Smith was cross-examined about his experience in the use of ROPS on light vehicles in coal mines.  Mr Smith had long experience in the industry and was, at the time of giving evidence, the senior mechanical inspector of coal mines.  He gave this evidence in cross-examination:

“Apart from whether they’re mandated, are they in fact the norm rather than the exception on most mine sites in your experience?---  If you counted up the number of vehicles in the coal mining industry and the ones ROPS in, I’d be more inclined to say 50-50. 

50-50.  Okay.  And as you say, it will vary from mine site to mine site?---  Yes, some mine sites have none.”^[24]

129. [129]
     The evidence compels the conclusion that the Ford Ranger, putting rollover incidents to one side, demonstrates a level of risk from its operation which is as low as reasonably achievable.  When consideration of overturns is taken into account, one needs to consider the following:

1. (a)
   The Ford Ranger has an extensive safety cell which includes the A, B and C pillars as well as the roof rails and undercarriage;
2. (b)
   The roof strength is above the minimum required;
3. (c)
   The vehicle contains active safety systems such as ABS, ESC, and other methods of traction control which reduce the risk of an overturn occurring, and
4. (d)
   The vehicle’s passive safety systems such as the crash sensing system which involves, among other things, seatbelt pre-tensioners, airbags and other restraint controls.

130. [130]
     When those matters are taken into account in the light of the environment and the rules imposed within the coal mine environment, I am satisfied that the Ford Ranger proposed by BMA achieves a level of risk as low as reasonably achievable.

Is there a need for an engineering report?

131. [131]
     The appellant sought, as one of the orders, a direction that there be an engineering report prepared.  I am not satisfied, for the reasons advanced by BMA^[25] that this Court has the power to make such an order.  I do not need to decide that because I am satisfied that, even if there was the power, it is not appropriate given my other findings to order such a report.  The examination which has occurred as a result of this appeal has been extensive and intensive and little more could be gained. 

Orders

132. [132]
     The appeal is dismissed.
133. [133]
     I will hear the parties on costs.

(ERRATUM

Incorrect references to ‘Ford Explorer’ in [93], [120], [122], [125], [129], [130] were replaced with ‘Ford Ranger’.)