Anderson was speaking as part of the first Australian geotechnical conference held in February at the University of Wollongong.
Anderson’s message was clear: Consultants and mine managers need to recognise that if a fatality occurred, under recent legislative changes, criminal charges could be laid against them. The “substantial punitive measures” enshrined in the NSW Occupational Health and Safety Act, include fines and imprisonment.
The fact that 75% of the field staff who investigate incidents are ex-police officers underlines the punitive stance the department has adopted.
While ten years ago the relationship between management and the inspectorate in the planning cycle of a mine was a co-operative one, the focus is now on the downstream effects of management failures, Anderson said.
The move to duty of care “places employers and consultants under a need to demonstrate due diligence in the exercise of their functions”, Anderson said.
To highlight the repercussions of the shift, Anderson outlined three case studies, the first of which occurred in the UK in 1994. A civil works project was undertaken over previously worked out gassy coal seams, some 250m-300m below the base of the civil works. At the project’s official opening a methane explosion killed 19 people and the consultant on the project was found criminally negligent and sentenced to four years in prison.
He was found guilty because despite knowing about the presence of the gas he had assumed there would be no connection between the civil works and the sub-surface methane and had not told his client.
Anderson said the lesson to be learned was that external consultants must make clients fully aware of any negative aspects of design as well as assign consequences if things go wrong.
“Consultants, both internal and external, will need to advise their clients of the potential negative aspects of any advice offered and ensure that their clients comprehend this level of risk and its associated consequences. Effort will need to be made to ensure that all limitations of numerical and/or empirical models used in analyses are articulated.”
In the second case study an internal company engineer was struggling with life-threatening failures at an underground Australian mine. The engineer appointed an internationally experienced company of consultants which recommended several changes to the mine’s operating procedures such as leaving more material in the ground. The mining company then sought a second opinion from a smaller consulting company with no international experience. Their recommendations were to implement only minor changes which the mining company put forward for approval to the authorities.
The approving authority questioned the choice based on the fact that the two reports were fundamentally opposed. The mining company was not given permission to proceed with its choice.
Despite the tension between production based imperatives and safety requirements, Anderson said this story highlighted that companies needed to be extremely careful in their selection of consultants.
Anderson described a third event in 1993, when a US mine manager hired a consultant to help redesign and rearrange a mine’s ventilation. When gas entered the current workings from old sealed workings several people were killed and both the consultant and the mine manager were found negligent and given prison sentences.
The consultant was charged with criminal negligence because the model he used was inadequate to compute gas densities in that situation.
The mine manager was similarly charged because he failed to question the report, and failed to understand both the model’s limits and assumptions.
According to Anderson, the moral of this story is the need for the mine manager to be a “technical man” and to understand and question in detail all operational decisions that are made.
“Mine managers will need to be more discriminating in whom they commission for advice. Mine managers will need to be more challenging of the basis and limitations of advice offered to them,” he said.
From the various responses to Anderson’s paper it would seem that an emerging trend among operators is a focus on how they would defend themselves if something went wrong. As one mine manager said: “No matter what I do, nor how carefully I manage my business, I will be found guilty if something goes wrong.”
But as one consultant pointed out, even though the obsession with ensuring that actions are defensible in a court of law is a logical and natural response to the NSW Department's stated intent of initiating prosecutions against mining professionals, there was also a moral issue to consider. Non-fatal roof falls for example are not currently subject to mandatory investigation by any authority or group. Yet it is only through sharing knowledge about why these hazards occur that they can be eliminated.
Another senior manager is currently receiving advice from two separate geotechnical consultants on roof support in mine planning, “just to be sure”. He said he had not yet been placed in the impossible position of having to determine which approach was better as the solutions offered by both geotech consultants had delivered similar methodologies.
Yet another experienced operator warned that mine managers were feeling that the department was “out to get them”. This would force experienced operators to reconsider remaining in roles that exposed them to possible imprisonment if a fatality occurred he said.