Harrison v Kilby[2018] QMC 6

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   The defendant, Mr Kilby, was a driller on a drill rig. He caused the death of his fellow workmate, Gareth Leo Dodunski, by activating hydraulic equipment known as an iron-roughneck ST-80 (the ‘act’). He is charged with recklessly doing the act in contravention of s. 704 of the Petroleum and Gas (Production and Safety) Act 2004 (‘PGPS Act’). It is alleged in the complaint that the act, recklessly performed:

   1. was an act that might have adversely affected the safety of a person at the plant, in particular, Mr Dodunski; and
   2. caused Mr Dodunski’s death.^[1]
2. [2]
   The co-defendant, Saxon Energy Services Australia Pty Ltd ACN 137 534 993, is charged with the same offence under s. 704 of the PGPS Act on the basis that pursuant to s. 840 of the PGPS Act:

   1. the alleged offence under s. 704 of the PGPS Act is an offence for which it is required to prove Mr Kilby’s state of mind, about particular conduct, namely the act alleged to have been recklessly performed;
   2. Mr Kilby’s conduct was within the scope of the co-defendant’s actual or apparent authority; and
   3. Mr Kilby had the state of mind.

3. [3]
   There is no dispute about how this tragic event occurred. There is no dispute that Mr Kilby’s activation of the ST-80 was the act that caused the death of his workmate, who was crushed by the machine. There is no dispute that Mr Kilby was ‘a person at an operating plant’. There is no dispute that activation of the ST-80 was an act ‘that might adversely affect the safety of anyone at the plant’ in particular Mr Dodunski.^[2] The prosecution does not contend that the act was wilful.

4. [4]
   It is not disputed that, at the time of the incident, only the driller sitting in the demountable building, known as the doghouse (in this case Mr Kilby), could activate the ST-80. It is also not disputed that, at the time of the incident:

   1. to prevent the ST-80 from being operated the emergency stop button (E-stop) on the ST-80 had to be activated;
   2. only a person working outside the doghouse could activate the E-stop because it was located on the ST-80 out on the drill floor;
   3. to activate the E-stop a person had to walk out onto the drill floor and into the crush zone of the ST-80.^[3]
5. [5]
   It is not disputed that when Mr Kilby activated the ST-80:

   1. Mr Dodunski and a co-worker, Mr Mullings, had been working on the drill floor;
   2. Mr Dodunski was within the crush zone of the ST-80;
   3. The E-stop had not been activated;
   4. Mr Kilby had an unobstructed view of the drill floor and would have been able to see Mr Dodunski and his co-worker on the drill floor, had he looked;^[4]
   5. Mr Kilby took no action to ameliorate the risk to anyone at the plant before activating the ST-80 i.e.:
      1. (a)
         He did not look to see if the drill floor was clear of people, including the men who had been working in the area;
      2. (b)
         He did not check the computer HMI screen in front of him to ascertain whether the ST-80 emergency stop button (E-stop) had been activated by anyone on the drill floor;^[5]
      3. (c)
         He did not communicate his intention to activate the ST-80:^[6]

         1. (i)
            over the intercom microphone;

         1. (ii)
            by making visual contact with anyone on the drill floor and exchanging hand gestures.
   6. Mr Kilby failed in his attempts to stop the ST-80 when he realised Mr Dodunski was in its path;^[7]
   7. Mr Dodunski was crushed and killed by the ST-80.

6. [6]
   The issues for this Court to determine are:

   1. whether Mr Kilby’s activation of the ST-80 was an act done ‘recklessly’;^[8]
   2. whether the co-defendant, as a corporation:
      1. (a)
         can be found guilty for an offence founded in Mr Kilby’s act;^[9] and if so
      2. (b)
         has established a defence under s. 840(3)(a) of the PGPS Act. ^[10]

Chronology

7. [7]
   On or about 14 September 2012 Mr Kilby and another^[11] were tasked to review a Job Safety Analysis for the ‘make connections’ work activity. It was prepared under the supervision of Messrs Rod Bennett / Paul Beswick. ‘JSA No. ATS320-JSA-B2’^[12] It relevantly provided that:

   1. To address the hazard of poor communications, the driller was responsible for:
      1. (a)
         ensuring that all communications with work required is communicated clearly;
      2. (b)
         the review of any associated hazards, alerts, applicable Work Instructions (WI) or Job Safety Analysis (JSA). ^[13]
   2. To address the crush zone hazards, such as setting slips, both the floorman and the driller were responsible for the ST-80 E-stop being engaged every time work was to be completed inside the crush zone. ^[14]

8. [8]
   On 23 December 2012 Mr Kilby started his driller induction under the supervision of Mr Richard Ochey, who was Mr Kilby’s ‘on the job coach’.^[15]

9. [9]
   On 22 February 2013 a TAFE assessment pack in certificate II drilling was issued to Mr Dodunski.^[16]
10. [10]
    On 1 March 2013 Mr Mullings started employment with the co-defendant, Saxon.^[17]
11. [11]
    On or about 21 March 2013 Saxon issued an updated JSA re the work activity of ‘tripping in/out of hole – air drilling’ (JSA No. ATS320-JSA-L2). It relevantly provided that for crush zone hazards, such as pulling slips and setting slips, both the floorman and the driller were responsible for the ST-80 E-stop being engaged. Prior to pulling slips the ST-80 E-stop function was to be tested by the driller on the console.^[18] [my emphasis]

12. [12]
    On 4 April 2013 a TAFE assessment pack in certificate II drilling was issued to Mr Mullings.^[19]
13. [13]
    On 28 April 2013:

    1. two workers were injured on a Saxon rig in South Australia, one sustaining a crush injury.^[20] The incident occurred because the E-stop on an ST-80 had not been activated by the men working in the crush zone of the machine and the ST- 80 was accidently activated by a person in the dog house (the ‘South Australian incident’);
    2. Mr Kilby (as assistant driller), Mr Dodunski (as floorhand) and Mr Mullings (as day leasehand) attended an Incident/Accident Review Health, Safety and Environment (HSE) meeting^[21] held at 1.30pm to discuss the South Australian incident with Mr Sam Lloyd and others. The topics raised included:

1. (a)
   time out for safety;
2. (b)
   tong use pinch between ST-80 and stump;
3. (c)
   “always isolate the ST-80 when not in use”; and
4. (d)
   that the Job Safety Analysis (JSA) would be adjusted.

3. Mr Sam Lloyd sent an email at 1.48pm concerning the ‘TOFS’ meeting^[22] just held regarding the South Australian incident in which he noted:

“Actions for us also include to review current JSA’s for task and amend, written on driller’s window to ensure E stop is engaged.

Some food for thought could be a double action required on Omron tools screen? One button having to be held at all times and then another to initiate cycle if ‘held’ button is released the ST80 stop immediately in situ, instead of completing its function cycle. [sic]

This would eliminate the accidental hitting of cycle button to initiate, and if it is initiated then release of button to stop ST80 cycle will prevent ST80 from coming forward.”^[23]

14. [14]
    On 29 April 2013 Mr Kilby attended a combined Pre-task and Incident/Accident review meeting^[24] at which one of the topics discussed was a review of the South Australian incident. Mr Kilby was the assistant driller on that shift.
15. [15]
    On 30 April 2013 Saxon issued a Health and Safety Alert Bulletin^[25] pertaining to the South Australia incident noting that it occurred when “the incorrect button was pushed (ST-80) and the ST-80 was accidentally commanded to travel to well centre…”. Both the failure to isolate the ST-80 by using the E-Stop and the pressing of the wrong button on the HMI screen in the dog house were identified as the causes of that accident. One of the recommendations following the South Australian incident was that all crew members were to be “briefed on this alert at Safety Sunday for the following 8 weeks.” The re-enactment picture on the alert stated “E-stop not activated”.
16. [16]
    On 1 May 2013:

1. a TAFE assessment pack in certificates II and III drilling was issued to Mr Kilby.^[26]
2. Mr Dodunski (as floorhand) attended:
   1. (a)
      an 11.30am weekly safety HSE meeting^[27] at which the topic of good communication was discussed. The recommendations/corrective actions from that meeting referenced the ST-80 safety alert.
   2. (b)
      a 6pm pre-task HSE meeting^[28] at which the topic of isolating the ST-80 if rig tongs were needed was discussed. The recommendations/corrective actions from that meeting included “lessons learned from ST-80 safety alert”.

17. [17]
    On 2 May 2013 Mr Mullings (as leasehand) attended a pre-tour HSE meeting^[29] at which the topics of safety alerts and an ST-80 issue were discussed. Good communication was one of the recommendations/corrective actions from that meeting.

18. [18]
    On 8 May 2013 Mr Kilby received his driller induction under the supervision of Mr Richard Ochey, who was the ‘on the job coach’. The induction included:

    1. performing task risk assessments;^[30]
    2. operation of the driller console; ^[31]
    3. demonstrating the driller’s role during a ‘typical round trip’; ^[32]
    4. Saxon’s process of training and assessment of rig personnel, including a probationary review; ^[33]
    5. the driller’s role in people management.^[34]
19. [19]
    On 10 May 2013 Saxon issued a work instruction entitled ‘Breaking out drill pipe POOH’ in which Steps 3 and 4 dealt with engaging and disengaging the ST-80 and Step 7 concerned pulling slips. All three steps required the driller to have clear vision. The work instruction also specified that a pre-job safety meeting had to be held and recorded, including a pre-start meeting concerning the ST-80.^[35] [my emphasis]
20. [20]
    On 11 May 2013 Mr Mullings (as leasehand) attended a pre-task HSE meeting^[36] concerning the topic of ‘tripping in hole’. The following 4 recommendations/corrective actions came out of that meeting:

    1. Use E-stop on ST-80 when pulling slips;
    2. Personal Protection Equipment (PPE);
    3. Crush points;
    4. Good communication between the driller and floor hand.
21. [21]
    On 13 May 2013 Mr Mullings (as leasehand) attended a weekly safety HSE meeting^[37] at which the topics of exclusion zones and the ST-80 safety alert were discussed.
22. [22]
    On 23 May 2013:

1. Mr Kilby completed his rig 185 driller induction, with logbook^[38] and was promoted to driller.^[39]
2. Mr Mullings completed his rig 185 leasehand induction. ^[40]

23. [23]
    On 26 May 2013 Mr Kilby (as driller), Mr Dodunski (as floorhand) and Mr Mullings (as leasehand) attended a weekly safety HSE meeting^[41] concerning safety alert bulletins at which the following topics were discussed:

    1. Safety Sunday;
    2. Santos pushing the use of lockout and tag out;
    3. Incident flashes.

The recommendations/corrective actions from that meeting included:

4. ‘Kn of use Alert’;
5. Manual handling/PPE use;
6. ST-80 E-stop.

24. [24]
    On 29 May 2013 Mr Kilby (as driller), Mr Dodunski (as floorhand) and Mr Mullings (as leasehand) attended a pre-task HSE meeting^[42] at which the following topics were discussed:

    1. good co-ordination between roughneck, skate operator and driller; and
    2. tripping back into hole after flow testing.

The recommendations/corrective actions from that meeting included:

3. PPE at all times;
4. Follow driller’s instructions;
5. E-stop of ST-80 to be in for rig tong use.

25. [25]
    Between 28 May 2013 and 31 May 2013 Mr Kilby, as ‘on the job coach’, took Mr Dodunski through the Floorhand Induction Task List,^[43] which relevantly included:

    1. The electrical lockout system as it applies to the floorman;^[44]

2. Why it is important not to obstruct the driller’s view of the drill floor;^[45]

3. Where it is, and is not, safe to stand during routine operations on the drill floor, and why;^[46]

4. Typical pinch points on the drill floor and how to avoid accidents associated with them;^[47]

5. Precautions to be taken around moving machinery;^[48]

6. Completing a ‘typical round trip’ using an ST-80.^[49]

[my emphasis]

26. [26]
    On 4 June 2013 Mr Dodunski completed his rig 185 floorhand induction.^[50]
27. [27]
    On 21 June 2013 Mr Kilby signed a Saxon document entitled Pre SPUD Inspection Checklist.^[51]
28. [28]
    On 23 June 2013:

1. at 12.38pm Mr Kilby (as driller), Mr Dodunski (as floorhand) and Mr Mullings (as leasehand) attended a pre-task HSE meeting^[52] to discuss the topics of:
   1. (a)
      tripping out of hole;
   2. (b)
      two people pulling slips; and
   3. (c)
      keep an eye on your mate.

The recommendations/corrective actions from that meeting were:

4. (d)
   PPE at all times;
5. (e)
   Review JSA.

2. at approximately 3.15pm the fatal incident occurred.^[53] Mr Kilby and the rig superintendent, Aaron Marshall,^[54] were in the doghouse at the time and Mr Dodunski and Mr Mullings were on the drill floor;
3. at 6.45pm Mr Kilby was interviewed by, and signed the notes of, Sgt Mitchell.

29. [29]
    On 24 June 2013 at 3.09pm Mr Kilby was interviewed by Mr Bartels and Mr Barron, in their capacity as investigation officers appointed under the PGPS Act.^[55] Mr Lloyd was also present at Mr Kilby’s interview in his capacity as rig safety training co-ordinator of rig 185 for Saxon.

30. [30]
    On 13 November 2013 Saxon’s 2013 annual safety report was approved. At section 3.0 of the report a significant rig hazard for personnel entrapped and entangled was noted. The eighth and final control identified for that hazard was engineering safeguards including audible and visual alarms, guarding and interlocks.^[56]

Summary of the evidence concerning Mr Kilby’s state of mind at the time he activated the ST-80

31. [31]
    Evidence of Sergeant Mitchell who attended at the scene on the day of the incident: He gave evidence that he obtained an unsworn statement from Mr Kilby on the day of the incident, which was contemporaneously written into his police notebook and signed by Mr Kilby.^[57] The contents of the notebook were not challenged in cross examination. In evidence Sergeant Mitchell observed that “…everyone I spoke to was emotionally distressed.”^[58] Mr Kilby relevantly told the officer:

“I commenced work at 12 midday at the rig site. My role is the driller. I am responsible for the drill and crew. I work the controls of the drill as per the program set by Santos. At about half past three just after smoko we were pulling out the string and just got the drill collar. I set slips and Gareth and Dan went in to fit the dog collar, they went in on their own accord. I was speaking with Aaron who was trying to find the day lease hand. I then feel like I have fucked up and gone into auto pilot and hit the button for the ST- 80 to come out and break the connection. As soon as I hit it, I saw the boys there. I was trying to stop it, but you can’t stop it once you have started it. The boys should have hit the emergency stop as soon as they went in which would not allow the ST-80 to be operated…

I then gave this statement to police at 18.45.” [my emphasis]

32. [32]
    Evidence of Mr Ian Bartels, a senior inspector of the Queensland Petroleum and Gas Inspectorate. Mr Bartels have evidence that he, together with his colleague, Mr John Barron, interviewed Mr Kilby the day after the incident at 3.09pm.^[59] During that unsworn interview Mr Kilby stated:

“I was rung from the rig manager’s office looking for the day lease hand so I tried calling him on the intercom and hoped that he would have heard it and gone to the office. Continued doing what we’re doing. We just… finished pulling the heavy weights which don’t require a dog collar, just break them out straight away. Then got to the first drill collar, I’ve set slips, in this time Aaron, the superintendent, has come up to enquire as to where the day lease was. I briefly stopped doing what I was doing, said I’d called him on the intercom, don’t know where he is. Gone back to the job and gone straight into break out without realising that the boys had already gone in there to put the dog collar on. And as soon as I’ve realised I’ve trying [sic] to hit stop but there is no stop button… should have been hitting retract which is on the other side of the screen. And in this time I’m trying to shout but they can’t hear me ‘cause I’m in the doghouse and that is when the ST-80 collected Gareth and killed him…

…

… depending what you do, you press break or make and it will do the same thing, it will come out to hole centre. And then you go position confirm, saying that you are where you want to be. But once you hit make or break, that’s it, it comes out…

… in this case I hit break because… the intention was to break the joint.

… if you are quick enough you can hit retract, which in that moment in time I wasn’t thinking retract, I was thinking off and there’s an off button right next to break and I’m hitting it with no effect. And… our policy is we’re supposed to have the emergency stop on whenever the boy are in there and Gareth was the best at doing that… And this one time he didn’t put it on.

…

… I just finished talking to Aaron and I’ve gone straight to what my next step is which is to break out the joint and then as soon as I’ve touched it I’ve realised the boys have… gone in there without looking at me for confirmation…” [my emphasis]

33. [33]
    When asked during the interview by Mr Bartels what the normal process would be Mr Kilby stated “Well once they’re finished… inside there then it’s all clear for me to do it so they pull the button off and then I’m able to activate it.” Mr Bartels then asked Mr Kilby “Okay so you never push the button first waiting for him to pull it off?” to which Mr Kilby responded “No. Well it, they push it from out there, I’m inside the doghouse.”

34. [34]
    When asked during the interview by Mr Bartels whether there was any visual indication on his screen as to whether the E-stop had been pushed Mr Kilby stated “Yeah there’s a, it will come up say, well it’d be like in red at the top, it’s like a little thing saying E stop.”

35. [35]
    When asked during the interview by Mr Bartels whether it was normal for Mr Dodunski to stay between the ST-80 and the drill string (i.e. in the crush zone) as opposed to standing to the side Mr Kilby stated “No that’s fairly normal for him to be where he was.”
36. [36]
    Evidence of Mr McMillan West, a crew leasehand at the time:^[60] Mr West spoke with Mr Kilby on the evening of the incident. Mr Kilby told him “I wasn’t looking at what I was doing. I was talking to someone inside the dog house and activated the [ST-80] without looking what was in front of it. I then turned back around and saw what was about to happen to Gary and stood up and just started screaming at the glass.”^[61] Mr West’s evidence was not challenged under cross examination.

37. [37]
    Evidence of Mr Ashley Jenner, a motor hand on the rig at the time: Mr Jenner gave evidence that he spoke with Mr Kilby the day after the incident and that Mr Kilby told him that he was distracted by Aaron Marshall and was devastated.^[62] Mr Jenner’s evidence was not challenged under cross examination.

38. [38]
    Evidence of Mr Samuel Lloyd who at the time of the incident was employed by Saxon as the rig safety and training coordinator for rig 185 (RSTC) and had been in that position for 10 or 11 months.^[63] Mr Lloyd gave evidence that he was at the meeting on 23 May 2013 (at which Mr Kilby was also present) and that he recalled that use of the ST-80 E- stop was reinforced.^[64] He also gave evidence that he was present, and took notes, when Mr Kilby was interviewed by Sgt Mitchell on the day of the incident.^[65] Mr Lloyd also gave evidence that he was present at the interview conducted the following day by PGPS Act investigators, Messrs Bartels and Barron.

39. [39]
    Evidence of Mr Daniel Mullings, the leasehand working on the drill floor with Mr Dodunski at the time of the incident: He gave evidence that “I grabbed Gareth’s right arm and tried to pull him out of the way. But it had already caught him… it pulled him in. I stood up straight pretty much straight away and… looked over into the dog house at Jake and Jarrod, They were both trying to stop the ST-80 and try to get it out. [sic]…

“… they were both pressing the screens trying to, well, activate the ST-80 to back to – to its home.”^[66]

40. [40]
    Mr Mullings’ evidence was not challenged under cross examination. Mr Mullings gave no evidence about the presence of Mr Marshall in the doghouse or what, if anything, Mr Kilby said about the incident. I conclude that Mr Mullings’ evidence was, understandably, impacted by memory loss resulting from the trauma he experienced when he witnessed the incident.^[67]

41. [41]
    Evidence of Mr Jarrod Dixon, who was the derrickhand on rig 185 and inside the doghouse with Mr Kilby and Mr Marshall at the time of incident: Mr Dixon gave evidence that at the time of the incident he was inside the doghouse with Messrs Kilby and Marshall, ^[68] who were having a conversation. At the time of the trial he could not recall what was said, nor could not recall what length of the time elapsed between the conversation and the incident. He could not say whether Mr Kilby had physically turned to speak to Mr Marshall. ^[69] He gave evidence that the “next heavyweight was set in slips, and the dog collar was about to be put on. I didn’t see that, because my focus was here.” (i.e. to his right. The drill floor was to his left).

42. [42]
    He gave evidence that he heard Mr Kilby swear and then turned his head to see the ST- 80 two or three feet away from Mr Dodunski, who had his back to the machine. He could hear Mr Kilby yelling out, but could not recall whether Mr Kilby was using the intercom microphone.^[70] His evidence was not challenged under cross examination. Under cross examination he agreed that Mr Kilby was a person who knew what he was doing and focused on the job at hand. Relevantly when asked whether Mr Kilby had turned away to answer a question from Mr Marshall, he stated “I can’t say he turned away. I don’t know … I was concentrating on my own shit.”^[71]

43. [43]
    Evidence of Professor Dux concerning the impact the interruption upon Mr Kilby’s performance of the task: the effect of the Professor’s evidence was that Mr Kilby’s conversation with Mr Marshall was an interruption that caused Mr Kilby “to disengage from a task… which then lead to a sequencing error.” Relevantly the professor identified the task as being the safe operation of the ST-80 in a time-efficient manner.^[72]
44. [44]
    He concluded that Mr Kilby was required to be cognisant of the risk posed by ST-80 at the time he did the act. ^[73] He opined that Mr Kilby “(h)ad a particular sequence of tasks to safely operate the ST-80. At a critical point of that sequence … he was interrupted in this thought processes by Mr Marshall… he turned back and made a sequencing error. He activated the ST-80 without first checking if it was safe to do so.”^[74]

45. [45]
    Professor Dux conceded that this expert opinion was based on instructions provided to him by Mr Kilby’s solicitors. He did not have a statement from Mr Kilby, nor did he feel it was necessary for him to meet with Mr Kilby to discuss the matter prior to forming his opinion and preparing a report on the matter.^[75] Under cross examination, Professor Dux was relevantly asked, and answered, the following questions:

“And the distraction here was an inquiry by a supervisor as to the whereabouts of another employee?--- Yes.

And that – that response to the inquiry by Mr Kilby was to briefly stop what he was doing to say: ‘I called him on the intercom. I don’t know where he is?’--- Yes.”^[76]

Evidence concerning the level of compliance with ST-80 E-stop safety measures

46. [46]
    Evidence of Mr Graham Hartwig, a mechanic on the rig at the time: He gave evidence that he observed daily non-compliance with E-Stop procedure. He walked past the ST- 80 area on a daily basis, most mornings. He stated that because there were drillers working 24 hours a day, they could be drilling while he was up there at the rig.^[77] He stated that he had walked past on several occasions and seen people in the exclusion zone between the ST-80 and drill pipe without the E-stop depressed.

“…they were doing that quite regularly…

How frequently did you see this non-compliance with the procedure with respect to the use of the E-stop? --- I guess nearly daily.

Who were the others that you would speak to about it? --- Rig manager and RSTC.”^[78]

47. [47]
    Mr Hartwig did not give specific evidence about the identity of the people he saw not complying with the ST-80 E-stop safety procedure.

48. [48]
    Evidence of Mr Ashley Jenner, a motor hand on the rig at the time. Mr Jenner gave evidence that there were set procedures concerning when the ST-80 E-stop was to be activated, namely “Whenever the slips were being set and the dog collar was being put on drill collars.” He gave evidence that it was done “if it was remembered to be done. If not, it wasn’t.” He recalled regularly seeing rig managers, tool pushers and drillers speaking to people about the failure to use the E-stop. He gave evidence that these conversations were happening “Because people were being complacent towards it.” He gave evidence that people were quite vigilant about it after the South Australian incident, but “It slowly, you know, fell by the wayside again”. He gave evidence that he saw people forgetting to use the E-stop again.^[79]

49. [49]
    Evidence of Mr Daniel Mullings, the leasehand working on the drill floor with Mr Dodunski at the time of the incident: Mr Mullings gave evidence that the procedure between himself and Gareth concerning activation of the E-stop was that whoever was inside the derrick (in the crush zone)^[80] would activate the E-stop on the ST-80. It was not activated every time the ST-80 returned to its home position. It was only activated when they had to enter the derrick, “which was most of the time, depending on the activity.”^[81]

50. [50]
    Evidence of Mr Jarrod Dixon, who was the derrickhand inside the doghouse with Mr Kilby and Mr Marshall at the time of accident: Mr Dixon gave evidence that prior to the incident on 23 June 2013 there was a practice of communication between the people on the drill floor and the driller in the doghouse concerning the operation of the ST-80. He said “Yep. There was positive communication, like, body language and you would see the person on the E-stop or engaging the E-stop and giving the thumbs up. Yep… It was 99 percent of the time.”^[82]
51. [51]
    Mr Dixon gave evidence that he seen or heard people on the drill floor being spoken to about the use of the ST-80 E-stop:

“All right. Well, have you ever seen or heard anyone speaking to people working on the rig floor about the use of the E-stop?---Yes.

On how many occasions?---Several.

And who are you talking about?---Direct managers, tool pushers.

And what sort of things were being said?---‘What the fuck? What are you going in there for’, you know, ‘push the bloody E-stop.’ You know, just a – physical reminder of what we needed to do.

All right. Now, did the driller have any means of communication with workers on the rig floor?---Yes he had a microphone.

All right. And did you ever hear a driller speaking to people on the rig floor about---? All the time.

---use of the E-Stop?---All the time.

And again, what sort of things were being said?--- ‘Fuckin’ E-Stop’.

…was that a complaint about the E-Stop not being used or being used?---Not being used.^[83]

52. [52]
    When asked in evidence in chief whether he could recall Mr Kilby saying anything regarding non-use of the E-stop he said:

“All the time… Yes. ‘E-stop, boys’ you know, because I would be doing my thing. I would be concentrating on my area and yep… Sometimes that was forgotten to be released too. That – that stops the rhythm of the boys, you known, working…get a good rhythm going of doing what we do, tripping in and out of the hole, and it breaks the rhythm. So that sort of, like, pisses you off when you see that.”^[84]

53. [53]
    When asked about the extent to which Mr Dodunski would observe practices like pushing the E-stop he said “He was the man, yeah… He was a good foreman. He knew his job well and he was trying to do everything properly.”^[85]

What is meant by ‘recklessly’ under s. 704 of the PGPS Act?

54. [54]
    The word ‘recklessly’ is not defined in the PGPS Act. The concept of recklessness has been the subject of extensive consideration by courts, often in the context of offences involving an intention to cause harm, e.g. murder or grievous bodily harm. Some of the court decisions pertaining to the use of the word involve a statutory framework that includes a definition of the word. It is important to observe that the offence before this court does not include an element of intention to cause or do harm to either person or property.

55. [55]
    The defence submits that the prosecution bears the onus of proving, beyond reasonable doubt, that when Mr Kilby activated the ST-80 (the ‘act’) he did so with foresight that the act “might adversely affect the safety of anyone at the plant.” i.e. at the time of doing the act Mr Kilby foresaw a risk/s to any person and that Mr Kilby consciously disregarded the risk/s.^[86] [my emphasis] The defence submission was developed in a way that contended that ‘conscious disregard’ was synonymous with subjective foresight of a possible risk.^[87] Ultimately it was framed as “the requirement for subjective foresight is a requirement that there be a conscious disregard of the risk.”^[88]
56. [56]
    The prosecution agrees that it must prove that Mr Kilby did the act with foresight that the act could possibly (not would probably) affect the safety of anyone at the plant.^[89] The prosecution rejects the second limb of ‘conscious disregard’ promoted by the defence as an element the prosecution must prove to establish recklessness within the meaning of that word as it applies to this offence.^[90]
57. [57]
    The prosecution concedes that if the defendant didn’t turn his mind to the possibility of risk before activating the ST-80, his conduct couldn’t be found to be reckless.^[91] But they submit that, in the present statutory context, the test to be applied to the word ‘recklessly’ has a low threshold and it would be sufficient for the prosecution to prove that at the time of the act Mr Kilby did have an appreciation that what he was doing might possibly affect somebody’s safety.^[92]

“We say, consistently with Aubrey, it’s not required that he have a state of indifference or that there be a conscious disregard. All that’s required… is that spark of cognition that pushing that button might possibly adversely affect somebody’s safety.”^[93]

58. [58]
    I accept the prosecution’s submission on this point. I reject the defence contention that recklessness requires not only an awareness of the possibility of risk but the further mental element of ‘consciously disregarding’ those risks. The defence says “Conscious disregard and indifference are merely different ways of forming a reckless state of mind.” In effect they argue that ‘conscious disregard’^[94] is a separate and distinct concept or mental state from that of ‘indifference’.^[95] It is clear that the defence does not contend that the prosecution must show that Mr Kilby was indifferent to the possible risk.^[96]

59. [59]
    The defence’s argument that ‘conscious disregard’ is an element of the offence invites the court to invoke an element of intention to harm, or at least consciously run the risk of harm. This is obviously applicable to offences where intent to harm is a clear element of the offence, such as murder or grievous bodily harm, and there is a preponderance of cases dealing with the concept of recklessness in that context.^[97] It is equally applicable to statutory provisions that deal with offences that pertain to ‘reckless disregard’ or ‘reckless indifference’.^[98] To be reckless in these statutory contexts is to be aware of the possibility of the risk of harm and to consciously decide to run the risk of harm being done and do the act anyway.^[99]
60. [60]
    The offence Mr Kilby confronts involves the mental element of doing an act recklessly, but it does not involve an element of intentionally risking harm being done to another. The relevant intended ‘act’ under s. 704 of the PGPS Act is the operation of the ST-80, not an act intended to harm such as murder or grievous bodily harm. I note that the defence argues that cases, such as Towle v R^[100] which involved offences of culpable driving causing death and negligently causing injury, run contrary to this construction of the word ‘recklessly’ under the PGPS Act. At first blush this argument has some appeal because, like s. 704 of the PGPS Act, the offences in that matter did not involve an intention to harm or risk harm. However the offences in Towle:

    1. are ones of gross criminal negligence involving an objective test of foreseeability of harm;^[101]
    2. are ones where the ‘conscious disregard’ of a known risk was considered by the court to be an aggravating factor, rather than an element of the offence;^[102]
    3. was decided before the High Court’s decision in Aubrey v R.^[103]
61. [61]
    The defence further argued that to remove the element of ‘conscious disregard’ from the offence under s. 704 of the PGPS ACT would, in effect, render the defendant culpable for a negligent act, rather than a reckless one.^[104] I don’t agree with that submission. The test for negligence is an objective one based on the foreseeable and probable consequences of the actions of a reasonable person. Whereas for recklessness, it is a subjective one based on the possible consequences in the mind of the defendant at the time the act is done.

62. [62]
    Accordingly, I find that to do an act recklessly under s. 704 of the PGPS Act means to do an act, whilst at that time being cognisant of the risks associated with that act, but without the need to consciously decide to risk harm being done.^[105] For these reasons I find that it is not necessary for the prosecution to prove that the defendant consciously disregarded the risks, merely that he apprehended that there were risks at the time that he activated the ST-80.

63. [63]
    The court can have regard to the circumstances, probabilities and evidence of what the defendant did and said at the time to determine, beyond reasonable doubt,^[106] whether he must have thought of the risk. As noted by Lord Bingham in R v G:

“Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done.”^[107] [my emphasis]

Did Mr Kilby recklessly activate the ST-80?

64. [64]
    On the evidence before me, it is clear that the ST-80 on rig 185 was a danger to any person in its vicinity.^[108] For example the risk of it being unintentionally activated by a person in the doghouse, such as the driller, and causing harm to someone on the drill floor, such as a leasehand, had been the subject of specific training and was well known to Mr Kilby.^[109] Indeed, he himself had been involved in training at least one other person about the risks the ST-80 posed.^[110]
65. [65]
    Weighing up the evidence before me, I find that, whilst the driller was documented to be one of the people responsible for ensuring the ST-80 E-Stop was activated, in reality this was left to floor men, such as Mr Dodunski. This was because the driller had no ability to activate the E-Stop on the ST-80 from his position in the doghouse. Further it is clear that, whilst it became a requirement to isolate the ST-80 by activating the E-stop whenever itwas not in use, ^[111] this was not done in practice.^[112] Rather the onus remained on people entering the derrick on the drill floor to communicate non-verbally with the driller and then enter the ST-80’s crush zone, while the ST-80 was still operable, to activate the E-stop and isolate the ST-80.^[113] The inherent, and now too painfully obvious, flaw with this approach is that it necessitated a person going into the crush zone of the un-isolated ST-80. It also meant that if a floorman had forgotten to isolate the ST-80 he remained at risk of harm from the ST-80 being operated remotely by the driller.^[114]
66. [66]
    The ongoing, and known,^[115] risks associated with this method of isolating the ST-80 explain why the procedure around the use of the ST-80 E-stop was being regularly reinforced in the workplace.^[116] It also explains Mr Kilby’s statement to the police that

“The boys should have hit the emergency stop as soon as they went in” and to the PGPS investigators that he had “gone straight into break out without realising that the boys had already gone in there… I’ve gone straight into what my next step is which is to break out the joint… as soon as I’ve touched it I’ve realised the boys have… gone in there without looking at me for confirmation”.

67. [67]
    Based on the evidence of Mr Dixon, I accept that prior to the act of operating the ST-80 Mr Kilby had been interrupted in his duties by the conversation he’d had with the rig superintendent, Mr Marshall, in the doghouse. However I do not accept that his conversation with Mr Marshall could reasonably have caused Mr Kilby to fail to recognise the risks the ST-80 posed when he returned to his tasks and activated the ST- 80. Whilst the conversation was a distraction that could reasonably have caused Mr Kilby to forget where he was in the sequence of ‘tripping out’ steps, there is no evidence to suggest that he had already commenced the task of operating the ST-80 when the conversation occurred.

68. [68]
    The weight of the evidence before the court supports a finding, beyond reasonable doubt, that it was after the conversation had been completed and a short, but unspecified period of time had elapsed, that Mr Kilby brought to his mind that his next step was to break out the pipe requiring him to activate the ST-80. Whether he thought about the need for the floormen to set a dog collar or not is irrelevant to his consideration of the risks, because Mr Kilby had been trained that whenever the ST-80 was to be operated the driller was required to mitigate the risks associated with activation of the ST-80 as part of that task.^[117] Therefore on the evidence before me, in particular the training Mr Kilby had received and given together with the safety meetings he had attended as recently as only 3 hrs before the incident, I am satisfied beyond reasonable doubt that at that time he operated the ST-80 Mr Kilby apprehended the risks associated with operation of that equipment.^[118]
69. [69]
    There is no suggestion on the evidence before me that Mr Kilby was interrupted in the task of activating the ST-80. He commenced that task after he completed his conversation with Mr Marshall. Aside from the opinion of Professor Dux, there is nothing on the evidence to suggest that the task of activating the ST-80 was one that was time critical.^[119] Of course I accept that the work was required to be performed in an efficient manner, but there is no evidence before me pertaining to time pressures associated with the task.

70. [70]
    There were things Mr Kilby could have done to ameliorate the risks the ST-80 posed. He had an unobstructed view of the drill floor and would have been able to see Mr Dodunski and Mr Mullings on the drill floor, had he looked.^[120] He did not check the computer HMI screen in front of him to ascertain whether the ST-80 E-stop had been activated by anyone on the drill floor^[121] nor did he communicate his intention to operate the ST-80 either:^[122]

1. over the intercom microphone; or
2. by making visual contact with anyone on the drill floor and exchanging hand gestures.

71. [71]
    It is not disputed that Mr Kilby intended to activate the ST-80.^[123] There is no sworn evidence before me as to what was in Mr Kilby’s mind at the time he activated the ST- 80. However the matters set out above and the evidence of the events leading up to the incident concerning:

1. Mr Kilby’s involvement in reviewing a JSA addressing the crush zone of the ST - 80;[124]
2. Mr Kilby’s presence at safety meetings held following the South Australian incident; ^[125]
3. Mr Kilby’s own induction training as a driller; ^[126]
4. Mr Kilby’s work training others about the ST-80;^[127] and
5. the matters discussed between Mr Kilby, Mr Dodunski and Mr Mullings at the pre-task meeting only 3 hrs prior to the incident.^[128]

all provide strong circumstantial evidence from which I can, and do, draw the conclusion that at the time he activated the ST-80 Mr Kilby apprehended the risks activation of the ST-80 posed to the safety of persons at the plant.

72. [72]
    I reject the defendants’ contention that Mr Kilby’s immediate response upon realising that Mr Dodunski was in harm’s way militates against a finding, beyond reasonable doubt, that he was cognisant of the possible risks the ST-80 posed to persons, including Mr Dodunski, at the time he activated the ST-80.^[129]
73. [73]
    I accept that there is nothing on the evidence to suggest that Mr Kilby intentionally put Mr Dodunski in harm’s way. I accept that there was no ill will between the men. The evidence before the court is entirely consistent with the proposition that, having activated the ST-80, Mr Kilby then realised Mr Dodunski was in harm’s way. Indeed, on the evidence before me, I accept that to be the case. However for the reasons already expressed herein ‘conscious disregard’ of the risk of harm to Mr Dodunski, or any other person, is not an element of the offence with which Mr Kilby is charged.

74. [74]
    The unsworn statements made by Mr Kilby to the police, the PGPS investigators, Mr Jenner and Mr West are, of course, hearsay. However, even on those versions^[130] it is clear that Mr Kilby was aware of the risks the ST-80 posed when it was operated by him. They also suggest that he relied upon the floormen to ameliorate those risks.^[131]

75. [75]
    It is appropriate, at this point, to deal with the evidence of Professor Dux. The Professor’s evidence is challenged by the prosecution on two basis, namely:

    1. His opinion concerns matters that are within the Court’s knowledge and experience; and
    2. He purports to give evidence about legal concepts and, to that extent, swears the issue.

76. [76]
    There is a third issue that I see associated with the Professor’s evidence and that is that Mr Kilby’s version of events, upon which his opinion has been based, is not in sworn evidence before me.^[132]
77. [77]
    In any event, whilst I accept that the Professor’s field of endeavour is one based in a genuine area of expertise and neuroscience, I must confess that I derived very little assistance from it.

78. [78]
    Even putting to one side the issue that his opinion is based on unsworn evidence or facts not proven on the evidence before the court, the effect of the Professor’s evidence was that the conversation was an interruption that caused Mr Kilby “to disengage from a task… which then lead to a sequencing error.” Relevantly the professor identified the task as being the safe operation of the ST-80 in a time-efficient manner.^[133]
79. [79]
    As noted earlier in this decision, Professor Dux concluded that Mr Kilby was required to be cognisant of the risk posed by ST-80 at the time he did the act.^[134] He opined that Mr Kilby “(h)ad a particular sequence of tasks to safely operate the ST-80. At a critical point of that sequence … he was interrupted in this thought processes by Mr Marshall… he turned back and made a sequencing error. He activated the ST-80 without first checking if it was safe to do so.”^[135] The difficulty with this opinion is that the evidence before the court does not support the conclusion that Mr Kilby was interrupted after he commenced the sequence of steps required to undertake the task of operating the ST-80, but rather that he commenced the task of operating the ST-80 after he concluded his conversation with Mr Marshall.^[136]
80. [80]
    For these reasons I am satisfied that the prosecution has proven, beyond reasonable doubt, all the elements of the offence against Mr Kilby namely that at the time he activated the ST-80 he was cognisant of the risks it posed to the safety of persons at the plant and did so anyway. He clearly did not intend to cause harm to anyone, however the act was recklessly done because, despite at the time being aware of the risks associated with operating the ST-80, he did the act without doing anything to ameliorate those known risks.

Is the corporate co-accused guilty by virtue of s. 840 of the PGPS Act?

81. [81]
    The defence contend that because the corporate defendant is not ‘a person at an operating plant’ it is not capable of committing an offence under s. 704 of the PGPS Act, and is therefore not culpable despite s. 840 of the PGPS Act.^[137]

82. [82]
    The defence, in short, argue that when viewed in the context of the statutory framework, of the PGPS Act, and in particular Chapter 9, it is apparent that the Parliament intended s. 704 to only apply to a person ‘at’ the plant. The defence does not, however, make any submissions as to why a corporation is incapable of being ‘at’ a place such as a plant. Rather they argue that when looked at as whole, the provisions under Chapter 9, are worded to render individuals, not corporations, culpable for the offences set out therein. I reject that submission. I agree with, and reply upon, the prosecution’s submissions concerning this issue.^[138]

83. [83]
    The unambiguous words of s. 840 of the PGPS Act renders a corporation culpable for the conduct of its representatives where those representatives are required to have a particular state of mind. Section 704 of the PGPS Act is a perfect example of just such an offence. Therefore whilst offences under Chapter 9 may well be directed at individuals, there is a clear legislative intent is to make corporations culpable for offences committed by their representatives, ^[139] where it is relevant to prove the representative’s state of mind. The only caveat to this is where a corporation can make out a defence under s. 840(3) of the PGPS Act.
84. [84]
    If the legislative intent had been to exclude the offence under s. 704,^[140] which requires a person at an operating plant to engage in conduct and have a particular state of mind, from the scope of s. 840, then it would have been a simple matter to do so by using clear and unambiguous language in either section.

85. [85]
    For these reasons I find that corporations can be culpable for offences under s. 704 of the PGPS Act by virtue of s. 840 of the PGPS Act.

Has the corporate co-accused established a defence under s. 840(3) of the PGPS Act?

86. [86]
    The co-accused raises, by way of submissions, a defence under s. 840(3)(a) of the PGPS Act, namely that the corporation has proven that it took all reasonable steps to prevent the conduct.

87. [87]
    I find, on balance, having regard to the evidence before me that the steps taken by the co-defendant to prevent the conduct, namely operating the ST-80 when it posed a risk to persons at the operating plant, were not reasonable. I accept and adopt the prosecution’s submissions on this issue.^[141]
88. [88]
    In so concluding I particularly note that in light of the South Australian incident and the ongoing issues with compliance with the ST-80 E-stop procedure after that incident,^[142] it was unreasonable to rely on an ST-80 isolation procedure that continued to require a person to walk onto the derrick and into the crush zone of the un-isolated ST-80 to activate the E-stop. As stated earlier in my reasons, this exposed that person to a risk of serious harm, including death, from the ST-80 being operated remotely by another person at another location, i.e. the driller in the doghouse, albeit within line of sight. This was, I find, particularly unreasonable given the:

1. seriousness of the South Australian incident;
2. the circumstances in which the South Australian incident occurred, namely a driller accidently and remotely operated the ST-80 while people were on the derrick without the ST-80 E-stop activated;
3. the ongoing obvious and serious nature of the risk the ST-80 posed to persons at the plant;^[143] and
4. the suggestions of Mr Sam Lloyd made by email on 28 April 2013.^[144]

89. [89]
    For these reasons, I find that the co-accused, Saxon, has not proven that it took reasonable steps to prevent the contravening conduct of Mr Kilby.

CONCLUSION

90. [90]
    I find the defendants guilty of the offence. I will hear submissions on penalty.