Industrial Relations Commission
New South Wales

Medium Neutral Citation:

Independent Transport Safety Regulator v Rail Corporation New South Wales [2013] NSWIRComm 27

Hearing dates:

4 April 2013

Decision date:

15 April 2013

Jurisdiction:

Industrial Court of NSW

Before:

Haylen J

Decision:

(i) the defendant, Rail Corporation New South Wales, is found guilty of a breach of

s 8(1) of the Rail Safety Act 2008 as particularised in the Amended Application for Order in Matter IRC 482 of 2012 to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $150,000 with half that amount to be paid to the prosecutor by way of moiety;

(iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as assessed.

Catchwords:

RAIL SAFETY ACT 2008 - s 8(1) - failure to provide supervision and monitoring of work to ensure safety - guilty plea entered - five person work team required to work in rail corridor - obvious danger of being struck by trains using rail corridor - failure to block line where work being performed - train unexpectedly arrives at site where work team engaged - entire team put at risk - one member of the team fatally injured when struck by train - gaps demonstrated in safety system - lack of appropriate supervision and monitoring of safety communications - serious breach established - general and specific deterrence considered - numerous subjective factors mitigate penalty - early plea - contrition - first offender - significant steps taken after accident to address risks to safety - Victims' Impact Statements received - penalty imposed - costs.

Legislation Cited:

Occupational Health and Safety Act 2000
Rail Safety (Adoption of National Law) 2012
Rail Safety Act 2008

Cases Cited:

Independent Transport Safety Regulator v Patrick Portlink Pty Ltd t/as Patrick Portlink [2011] NSWIRComm 155

Category:

Principal judgment

Parties:

Independent Transport Safety Regulator (Prosecutor)
Rail Corporation New South Wales (Defendant)

Representation:

Mrs Thompson of counsel (Prosecutor)
Mr Hodgkinson SC (Defendant
Crown Solicitor's Office (Prosecutor)
Ashurst Australia (Defendant)

File Number(s):

IRC 482 of 2012

Judgment

1In the early hours of 13 April 2010, five rail safety workers were performing cleaning duties on the Up Illawarra local line adjacent to platform 1 at Kogarah Station. The work group had been authorised to perform this work by an Area Controller at Sydenham signal box. Although the work group understood that arrangements had been made for the line to be blocked so that train traffic would not use the line on which they were performing their work, those arrangements broke down when a train unexpectedly entered Kogarah station. All five members of the work group were in danger of being hit by the train but four of them were able to scramble to safety. The fifth member of the team, Mr Tamati Grant, tried to climb on to the station platform but was unable to do so and received fatal injuries when hit by the train.

2These events led to an investigation and ultimately the Independent Transport Safety Regulator ("the Regulator") commenced proceedings against Rail Corporation New South Wales ("RailCorp") alleging a breach of s 8(1) of the Rail Safety Act 2008 ("the Act"). The Regulator also commenced proceedings alleging a breach by the defendant of s 12(1) and s 13(2) of the Act. After considerable consultation, the prosecutor withdrew the s 12 and s 13 prosecutions and filed an Amended Application for Order in relation to the s 8(1) breach. Upon the filing of the Amended Application for Order, the defendant entered a plea of guilty. This judgment deals with the evidence and submissions on sentence.

3The Amended Application for Order particularised the breach in the following terms:

2. At all material times the Defendant was an accredited rail transport operator pursuant to Part 3 of the Act and within the meaning of section 4 of the Act.

3. At all material times the Defendant carried out railway operations throughout the Metropolitan Rail Network, including signalling operations at the Sydenham Signal Box complex at Sydenham, maintained the section of rail infrastructure from Hurstville Station to Kogarah Station in New South Wales and operated rolling stock for passenger services on that rail infrastructure, including train C488.

4. On 13 April 2010 at or about 1:07am, a work group of five rail safety workers consisting of Jim Abou-Khader, Tamati Grant, Michael James Smith, William Ross Clark and John Soso ("work group") were authorised to perform cleaning work on the Up Illawarra Local Line adjacent to Platform 1 at Kogarah Station by an area controller at Sydenham Signal Box under CSB.

5. The Defendant's railway operations were unsafe in that Tamati Grant, a rail safety worker in the work group, was killed and the four other members of the work group were exposed to the risk of death or serious injury when train C488 entered Kogarah Station whilst the work group was carrying out work on the Up Illawarra Local Line adjacent to Platform 1 at or about 1:08am.

6. The Defendant failed to ensure, so far as was reasonably practicable, the safety of the railway operations it carried out at the Sydenham Signal Box complex, Sydenham and the rail infrastructure and rolling stock from Hurstville Station to Kogarah Station in that it failed to provide such supervision and monitoring as was necessary to ensure, so far as was reasonably practicable, that the Defendant's Network Rules and Procedures, Operator Specific Procedures and General Orders were complied with, in that it did not:

6.1 provide adequate supervision of area controllers to ensure, so far as was reasonably practicable, compliance by the area controllers with Network Rules NWT 308 "Controlled Signal Blocking" ("NWT 308"), NPR 703, "Working using controlled signal blocking" ("NPR 703") and NGE 204 "Network communication" ("NGE 204") and Procedure OSP 2 "Carrying Out Activities Using Either No Authority Required" ("NAR") or "Controlled Signal Blocking (CSB)" ("OSP 2") and OSP 21 "Signal Box Management" including relating to the prohibition on use of personal computers within the Control Room of the Sydenham Signal Box;

6.2 adequately monitor or audit the voice communications between area controllers and protection officers relating to the Controlled Signal Blocking work on track method ("CSB") to ensure, so far as was reasonably practicable, compliance with its Network Rules and Procedures NWT 308, NPR 703, NGE 204 and OSP 2;

6.3 adequately monitor or audit the voice communications between area controllers and train controllers when CSB was implemented to ensure, so far as was reasonably practicable, compliance with its Network Rules and Procedures NWT 308, NPR 703 and NGE 204.

7. At all material times it was reasonably practicable for the Defendant to ensure the safety of its railway operations by undertaking the measures particularised in paragraph 6 above.

8. As a result of the said failures Tamati Grant was fatally injured and the other members of the work group were placed at risk of injury or death.

4The evidence for the prosecutor consisted of an Agreed Statement of Facts together with a large number of annexures. The annexures included: a layout of the Sydenham signal box showing the location of the Hurstville desk and its positioning in relation to a wider rail operation screen; a variety of images from an ATRICS screen showing the movement of the train at various times during the relevant period; CCTV images from Kogarah station; a variety of rail network safe operating procedures applicable to the task being performed by the working group on the night of the accident; a position description for the signal box manager and the signal box shift supervisor; and, an expert opinion supplied by an electronic evidence specialist employed by the New South Wales Police Force indicating that, shortly before the accident, the computer used by the relevant Area Controller had its modem manually connected at that time. It was common ground that by operation of the provisions of the Act the defendant did not have any relevant prior convictions. The Agreed Statement of Facts appears as an annexure to this judgment.

5The evidence for the defendant was provided through the affidavit of Mr Anthony Eid, the director of operations at RailCorp. In this position, Mr Eid reported to the Chief Executive and part of his role was responsibility for planning and managing the co-ordination of trains and crew operations including, signalling operations. At the time of the accident, he held the position of Deputy Chief Operating Officer with the defendant.

6After setting out his qualifications and the positions of authority he held, , Mr Eid indicated early in his affidavit that he was authorised by the Chief Executive of the defendant to say that RailCorp acknowledged and deeply regretted that its breach of the Act had contributed to this accident. The defendant regretted that, as a consequence of the accident, its own employees, Mr Grant's family and other sub-contractor employees and their families had been affected.

7Mr Eid explained the legislative provisions under which RailCorp was constituted and it was noted that RailCorp was a New South Wales government agency forming part of the Transport NSW portfolio. The objects, functions and management of the defendant were to deliver safe and reliable railway passenger services in New South Wales in an efficient, effective and financially responsible manner and to ensure that the part of the New South Wales rail network vested in or owned by RailCorp enable safe and reliable railway passenger and freight services to be provided in an efficient, effective and financially responsible manner. The operations of the defendant were described as being "extensive": it provided Metropolitan passenger rail services via City Rail and long distance services via CountryLink. These operations were 24-hours, 7-days per week operations. Some key statistics relating to RailCorp were that the rail fleet was comprised of over 1800 electric and diesel carriages with over 1600 kilometres of mainline track. An average of one million trips each day were made on the defendant's network to and from more than 380 railway stations. The defendant employed approximately 1500 people.

8Under legislative requirement, the defendant was obliged to have a safety management system for its operations in a form approved by the Regulator. Accreditation was not to be granted by the Regulator to a rail transport operator unless satisfied that the operator had demonstrated competence and capacity to manage risks associated with its railway operations. Mr Eid described the defendant's safety management system as "comprehensive" and representing an integrated safety system that was available in electronic form on the RailCorp Internet. Due to the complexity of the defendant's operations, the safety management system ran to approximately 1500 pages. Mr Eid also explained the structure of the safety system.

9There were a number of operating standards applied by the defendant including, Network Rules, Network Procedures and Operator Specific Procedures. There were five Network Rules relevant to the accident at Kogarah as well as two Network Procedures and two Operator Specific Procedures.

10In relation to signal boxes and signal complexes, Mr Eid noted that there were a number of such operations of various sizes and complexity throughout the defendant's network. At each location there were signallers, some called Area Controllers, whose role included the setting of routes for the safe and efficient transit of trains, the operation of signalling equipment and the arrangements for the protection of track workers responding to signalling equipment failures. These complexes operated 24-hours, 7-days per week. By reference to the Sydenham signal box control room layout, Mr Eid was able to point out that, at their individual work station, each operator had positioned in front of them a large number of computer screens showing their area of responsibility and each operator faced a large overview depiction of the components of the network for which the Sydenham signalling complex was responsible. The overview comprised of multiple large computer monitors.

11Mr Eid also referred to the automotive train running information control system ("ATRICS") which was described as a fully integrated rail control system developed and maintained by the defendant to manage train movements. At the time of this accident, ATRICS covered approximately 39 per cent of the defendant's network but was currently in use across approximately 42 per cent of the network. ATRICS met the requirements of the defendant under its Network Rules and was consistent with the defendant's signalling system: consequentially, ACTRICS allowed the automated implementation of the requirements for the operation of the rail network set out in the Network Rules. The ACTRICS system allowed signalling infrastructure, firstly, to be controlled automatically through automatic route setting for train movements based on the manipulation of the timetable or, secondly, as directed by a signaller using a computer mouse and keyboard to enter commands.

12Mr Eid explained the system of control signal blocking whereby, when work was undertaken on a rail corridor, an appropriate form of protection was implemented to allow work to be safely undertaken on a particular section of the track. Mr Eid described the five track methods. It was noted that on the day of the accident the Area Controller at the Sydenham signalling box, Mr Wayne Farr, had incorrectly informed the Protection Officer at the work site that blocks had been placed on the relevant signals although in fact there was a train in that very section at the time that the call was made and so the blocks had not been placed by him on the signal. It was asserted that, had Mr Farr acted in accordance with the defendant's processes, he would have looked at the ATRICS screen showing him that a train was in the section and would then have informed the Protection Officer that control signal blocking could not be implemented at that time. It was said that, had Mr Farr followed these processes, no person would have been at risk.

13Mr Farr's training was set out in some detail, including assessments conducted from time-to-time by the defendant. In particular, Mr Farr had been trained in emergency procedures and they had been shown to work effectively. However, rather than using these options, Mr Farr telephoned Kogarah station to speak to a customer service attendant: this action was not part of any emergency response in any of the defendant's procedures, nor was it part of any training received by Mr Farr from the defendant. It was stated that had Mr Farr implemented any of the emergency responses, in all likelihood the accident would have been completely averted.

14The Office of Transport Safety Investigations and the Regulator extensively investigated the accident. During these investigations, the defendant co-operated and complied with requests for all documents, information and interviews. The defendant also undertook an extensive review of its systems to identify reasonable measures and to prevent a similar accident occurring in the future. The defendant had now implemented various measures to address the issues raised by the circumstances of the accident at Kogarah. In summary, the main changes adopted by the defendant were changes to supervision in signal boxes and monitoring voice communications.

15Of particular significance was the restructuring of the management and operation of the defendant's signal boxes and signal complexes. Mr Eid dealt with this matter in some detail. Substantial changes were made to the management and supervision of signal boxes with the creation of the following new positions: manager, SBO; three area signal box manager positions; seven assistant area signal box manager positions; twenty-five shift supervisor positions; and, the position of incident response manager. The restructure was designed to achieve numerous ends including, the achievement of consistently in relation to all standards across all signal boxes and signalling complexes, improving communication flow between signallers, station staff and the rail management centre, the improvement of safety within the network by introducing subject matter experts into each signal box to supervise and co-ordinate control in the event of an emergency and also to enable continuous improvement and change programmes within the signaller operating environment.

16Mr Eid stated that the initial cost of engaging employees for the additional positions referred to above, including training and related costs, was approximately $5.3 million with ongoing annual costs in excess of $5 million. In addresses, senior counsel for the defendant accepted that this wide-ranging restructure occurred at a time that allowed the particular circumstances of this accident also to be addressed. Subsequent assessments indicated a high degree of successful remedial actions taken by the defendant.

17Mr Eid also dealt in some detail with the changes to the monitoring of voice communications. Under the previous system, radio communications between signallers, train drivers and train controllers were randomly monitored for four hours per week in relation to a particular area. The communications were scored against a set criteria. A review was conducted of communications that did not receive a 100 per cent score. If there were breaches of safe working procedures, that matter would be brought to the attention of the relevant line manager and in turn, that would be raised with the relevant worker. The Regulator was involved in inspecting and reviewing this monitoring and auditing process. The Regulator attended RailCorp at least once a year to interview workers and observe the implementation of the monitoring process. On such inspections, no issues were raised by the Regulator in relation to the defendant's processes.

18After the incident, the defendant's monitoring processes of auditing communications were altered to include telephone communications as well as MetroNet communications, thus, significantly broadening the scope of monitored communications. Further, the new system targeted safety critical communications relating to control signal blocking and other work on track methods rather than randomly selecting communications. The monitoring was now conducted in accordance with standard operating instructions. Following the accident, the defendant had trialled a number of different methods of collecting and reviewing voice communications in order to determine the most effective method of monitoring. The changes resulted in a substantial increase in the degree of monitoring.

19 In summary, Mr Eid said that, prior to the incident, the defendant spent four hours per week monitoring voice communications on MetroNet but now 70 to 80 hours per week were spent on identification, review and assessment of MetroNet and telephone communications. The previous process involved random communications while the new process targeted specific communications involving work on track to continually monitor and improve these communications.

20Speaking more generally, Mr Eid then dealt with the defendant's commitment to rail safety as reflected in its corporate plan and in the phrase "A safe railway, a safe workplace, a safe culture." It was said that the defendant was committed to creating an open and just workplace culture and within that system, it sought to establish an environment that sought out risk and identified system improvements through better incident reporting, promoting openness and learning from incidents. All employees were responsible for three duties, namely: the duty not to cause harm; the duty to follow a rule; and, the duty to produce an outcome. All the defendant's managers and front line supervisors were required to attend a two-day workshop focusing on supporting the "Just Culture" approach to the workplace. A half-day workshop was also provided for new and existing employees who did not supervise or manage staff. In addition, the defendant had a dedicated training unit to develop and deliver training to its business units and to measure and monitor the effectiveness of the training provided. In the 2011/2012 financial year the defendant's direct training costs total approximately $25 million.

21Mr Eid spoke of the defendant being actively involved in promoting rail safety principles locally and in railways across Australia and gave details of the defendant's participation in a number of matters including, rail safety and legislative reform programmes. He also dealt with the defendant's promotion of safety as exemplified by the Safety Convention, the Safety Competition and the Workplace Safety Committee Chairperson's Forum. Reference was made to passenger and commuter rail safety and the defendant participating in the Annual Rail Safety Week campaign. It was also a key participant in the TrackSAFE Foundation, a not-for-profit organisation established to improve, amongst other things, community awareness of issues associated with accidents in the rail corridor and the impact of critical incidents on railway workers, their families, passengers and members of the public. The defendant had developed and participated in a number of programmes to educate passengers and the community about the importance of rail safety and the dangers of trespassing on the defendant's property. These programmes included school education safety campaigns, the production of media promoting positive behaviours and others depicting the shocking results of serious accidents in order to raise community awareness of rail safety issues. Mr Eid was not required for cross-examination.

DELIBERATION

22It is to be remembered that this prosecution was brought pursuant to the terms of the Rail Safety Act. That Act departs from the terms of the Occupational Health and Safety Act 2000 in requiring that an operator carrying out railway operations is to ensure, so far as reasonably practicable, the safety of the rail operations. Senior counsel for the defendant pointed out that the different statutory onus had a distinctly less significant role to play in relation to this matter where a plea of guilty had been entered. While accepting that submission the Court is mindful that the particulars, to which the defendant has entered its plea of guilty, recognised that the identified steps to be taken were reasonably practicable and in light of the plea, those issues need not be considered further by the Court.

23It might be noted that in Independent Transport Safety Regulator v Patrick Portlink Pty Ltd t/as Patrick Portlink [2011] NSWIRComm 155, the Court dealt with the first prosecution under the 2008 Act. At [11] and [12] that judgment set out the context in which a rail operator's safety obligations arose and that analysis is equally applicable to the current proceedings. It should also be noted that, in that case, counsel for both the prosecutor and the defendants agreed that the sentencing process under the Act should broadly reflect the approach taken by the Court over many years to prosecutions under Occupational Health and Safety legislation: in particular, sentencing provisions, in terms of applicable principle, would not be different. The Court adopted that approach in the Portlink case and it is equally applicable to the current proceedings.

24Counsel for the prosecutor noted that the 2008 Act was repealed in January 2013 by the Rail Safety (Adoption of National Law) 2012 which commenced on 20 January 2013. Clause 46 of the Regulation made under that Act provided that proceedings for an offence against the former Act alleged to have been committed before the repeal of that Act were to be dealt with after the repeal of that Act as if that Act and the Regulation had not been repealed. There was no demur to that proposition and the Court is satisfied as to its jurisdiction to deal with the present matter.

25In dealing with the objective seriousness of the defendant's breach, the prosecutor pointed out that the maximum penalty for a first offender was $550,000: the penalties imposed by Parliament are an indication of the seriousness of the contravention.

26In written submissions counsel for the prosecutor succinctly dealt with the objective seriousness of the offence and made the following observations:

35. The Defendant failed to provide adequate supervision and monitoring of the implementation of the CSB work on track method to ensure compliance with the Network Rules and Procedures in three key respects:

Failure to provide adequate supervision of area controllers in the Sydenham Signal Box;

Failure to adequately audit or monitor voice communications between area controllers and protection officers;

Failure to adequately audit or monitor voice communications between area controllers and train controllers.

36 The Agreed Facts disclose that the Sydenham Signal Box continuously operated 24 hours a day, 7 days a week, however, the Defendant provided only one manager to attend the Sydenham Signal Box. The practice of the Manager was to attend the Sydenham Signal Box on a routine basis on the morning peak hour shift, sometimes during the afternoon shift and rarely during the night shift. The Manager was responsible for managing approximately 53 staff employed to work at the Sydenham Signal Box over the three shifts.

37 In addition, at various times a Network Operations Superintendent ("NOS") attended the Sydenham Signal Box. The NOS were based outside the Sydenham Signal Box complex.

38 All of the area controllers operating signalling panels were of equal standing. No one was appointed to supervise the staff working at the Sydenham Signal Box in the absence of the Manager.

39. As a direct result of the absence of supervision on the night shift of 12/13 April 2010, the area controllers were using personal computers and other private electronic devices unrelated to signalling operations whilst on duty. This practice was contrary to the Defendant's operational procedure OSP 21.

40. Mr Farr, an area controller who was working on the night shift on 12-13 April 2010 and was in charge of the Hurstville panel was using a personal computer during that shift. At or about the time that the protection officer requested CSB for the Up Illawarra Local line adjacent to Platform 1 at Kogarah Station from Mr Farr, the evidence shows that Mr Farr had manually activated a mobile internet connection on his personal computer. Other area controllers were also using personal computers on the night of the incident.

41. The Defendant through its Manager of the Sydenham Signal Box was aware, or ought to have been aware, that as at 11 June 2009 of a practice of area controllers of using personal computers and other devices while working at the Sydenham Signal Box and that a memorandum prohibiting the practice had been issued. Despite the memorandum, no supervision to ensure compliance with OSP 21 or the memorandum of 11 June 2009 by the rail safety workers at Sydenham Signal Box was implemented prior to the incident..

42. The Defendant's system of work as a result of the said failures was unsafe in that it failed to provide adequate supervision of rail safety workers' activities at the Sydenham Signal Box complex. At all relevant times it was reasonably practicable for the Defendant to provide supervision for each shift in the same manner supervision was provided to train controllers at the Rail Management Centre. See paragraph [94] of the Agreed Facts.

43. After the incident the Defendant changed its management structure, including the management structure for the Sydenham Signal Box.

Failure to adequately audit or monitor the voice communications of area controllers with protection officers and/or train controllers.

44. The Defendant failed to conduct adequate auditing and monitoring of the voice communications conducted between area controllers and protection officers and area controllers and train controllers relating to the CSB method of worksite protection. The Defendant had in place a system for auditing voice communications, but the system was not adequate in that it was not specifically directed at monitoring compliance with CSB operations.

45 Prior to the incident, the Defendant was aware of instances of non-compliance with the Network Rules and Procedures in relation to the communications in relation to the issue of CSB.:. The Defendant did not adequately audit or monitor the manner in which area controllers implemented the CSB Network Rules and Procedures until 29 November 2011 when the management structure was changed and shift supervisors were employed to be present at each shift worked at the Sydenham Signal Box.

46 By not having in place an adequate system of auditing and monitoring voice communications that would operate to ensure CSB related communications complied with the Network Rules and Procedures, the Defendant failed to eliminate or mitigate the risk of errors or omissions in CSB related communication protocols that could give rise to the risk of workers being permitted to work at worksites for which CSB protection had not been properly implemented.

27In the forefront of submissions for the defendant was the proposition that, in assessing the objective seriousness of the breach, it was necessary to take into account the very extensive and otherwise effective safety rules already adopted by RailCorp. It was submitted that, if Mr Farr had adopted those rules and systems, this accident would not have occurred. Indeed, there were a series of errors committed by Mr Farr but he still had time to activate alternative systems but for unknown reasons, he chose to adopt an approach that was not authorised or otherwise contemplated by the defendant's safety systems and rules. That submission was accompanied by an exhaustive analysis of the events of the night in the context of how the system operated and an explanation of the way in which the safety rules operated. It was also submitted that it was relevant to have regard to the very extensive steps taken after the accident and in particular, the restructure adopted by the defendant that thoroughly addressed the weaknesses of the existing systems thrown up by this accident.

28In terms, senior counsel for the defendant did not suggest that this was other than a serious breach but emphasised the context in which it arose. Accepting that approach, nevertheless, this breach is to be regarded as a serious breach of the Act and demonstrated the existence of flaws in the defendant's safety systems. The defendant is a very large employer carrying out 24-hour per day operations in an inherently dangerous industry. One of the obvious dangers of its undertaking is that persons working in the rail corridor, unless effectively protected, are in grave danger of being seriously injured or killed by trains using that corridor. Here, that clear and foreseeable risk required taking steps to prevent the risk of injury to persons employed in the rail corridor. The measures ultimately adopted were clearly available prior to this accident and in every respect were feasible and appropriate. The Court accepts the prosecutor's analysis as to the seriousness nature of this breach.

29In this case general deterrence should play a significant role in the setting of an appropriate penalty. The time has long past where it was commonplace to find the absence of safety systems or at best the existence of a basic, if not meagre, safety system. The experience of the Court now is that considerable resources of employers is expended and focused upon creating detailed safety systems, often with the assistance of outside consultants. That development has shifted the focus to ensure that existing and appropriate safety rules are enforced and that they be continually reviewed and audited in an effort to uncover workplace developments which render existing safety rules less effective. The present matter is such a case.

30In relation to specific deterrence, senior counsel for the defendant pointed to the existing detailed system of safety assisted by technology and offering a variety of options to fit the type of work being conducted in a rail corridor. Submissions were also directed to the extensive restructure undertaken by the defendant and the new systems of supervision and communication monitoring now available to meet shortfalls demonstrated by this particular accident. The defendant in the present case operates in an industry with a high degree of risk for those who work on or near the railway corridors. The fact that a detailed system of safety was found to be inadequate in relation to supervision and the monitoring of communications in providing work site safety underlines the need to encourage this defendant to continually review, monitor and update its safety systems in this area. There is, nevertheless, some force in the submissions for the defendant regarding RailCorp's attention to safety in response to this accident to the extent that, while specific deterrence will have a role in the setting on an appropriate penalty, it will be one of reduced significance.

31A number of subjective factors were raised for consideration. There was some discussion as to whether or not the history of this matter allowed the Court to determine that there was an early guilty plea entered. Ultimately, counsel for the prosecutor conceded that this should be regarded as an early plea. Senior counsel for the defendant explained in sufficient detail the lengthy negotiations at senior level and undertaken over a period of time, ultimately, leading the prosecutor to withdraw two prosecutions and to file an Amended Application for Order in terms that allowed the defendant to enter its plea of guilty. Having regard to the prosecutor's concession and the explanation provided on behalf of the defendant, the Court is satisfied that this was an early plea and one that should qualify for a discount of 25 per cent.

32The prosecutor also conceded that there had been co-operation with the Regulator's investigation and that is a matter of significance to be taken into account in mitigating the penalty. In addition, the prosecutor acknowledged that, by operation of the legislation governing the defendant, it was to be regarded as a first offender. The Court accepts that submission: it follows that the defendant is entitled to the leniency usually extended to a defendant of that status. It was also significant that the prosecutor accepted that the changes brought about by the defendant following the accident "led to significant benefits in its operations." The Court further accepts, that on the evidence before it, the defendant has demonstrated remorse and contrition for its part in this accident and has given assistance to Mr Grant's family in a way that demonstrates it has taken responsibility for its part in the tragic loss of Mr Grant's life. Mr Eid's evidence also demonstrates the good citizenship of the defendant, including its wider involvement in promoting safety in the industry. All the above matters will be taken into account in mitigating the penalty to be imposed.

33At the conclusion of the evidence and submissions, the Court indicated that, while reasons for judgment would be reserved, a finding of guilt by the defendant of the breach alleged in the Amended Application for Order would be entered. The prosecutor thereupon tendered seven Victim Impact Statements from the following members of Mr Grant's family: Hemi Mihaere, Tracey Mihaere, Janelle Mihaere, Kennie Mihaere, William Ross Clark, Tiheme Thomas Mihaere and Mary Florence Mihaere. Hemi Mihaere, Tracey Mihaere and Janelle Mihaere took the opportunity to read their statements to the Court. At the conclusion of the reading of those statements, the Court indicated that it would read and consider all the statements.

ORDERS:

34For the reasons given above, the Court makes the following orders:

(i) the defendant, Rail Corporation New South Wales, is found guilty of a breach of s 8(1) of the Rail Safety Act 2008 as particularised in the Amended Application for Order in Matter IRC 482 of 2012 to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $150,000 with half that amount to be paid to the prosecutor by way of moiety;

(iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as assessed.

ANNEXURE

AGREED STATEMENT OF FACTS

1. At all material times, the Prosecutor, the Independent Transport Safety Regulator (formerly known as the Independent Transport Safety and Reliability Regulator) (the "Prosecutor"), was a corporation constituted under section 42B (1) of the Transport Administration Act 1988 (NSW), whose address is Level 22, 201 Elizabeth Street, Sydney, New South Wales, and a body empowered under section 134 (1) of the Rail Safety Act 2008 (NSW) (the "Act") to institute proceedings for contraventions of the Act.

2. At all material times Rail Corporation New South Wales, (the "Defendant"), was a corporation constituted pursuant to section 4 of the Transport Administration Act 1998 (NSW) whose office is situated at Level 20, 477 Pitt Street, Sydney, New South Wales, 2000.

3. At all material times, the Defendant was an accredited rail transport operator pursuant to Part 3 of the Act and section 4 of the Act.

4. At all material times, the Defendant carried out railway operations throughout the Metropolitan Rail Network, including signalling operations at the Sydenham Signal Box complex, maintenance of the rail infrastructure from Hurstville Station to Kogarah Station in New South Wales and the operation of rolling stock for passenger services on that rail infrastructure.

Sydenham Signal Box complex

5. The Sydenham Signal Box complex is located adjacent to the Illawarra line a short distance south of Sydenham Railway Station. The Sydenham Signal Box is used by the Defendant to carry out signalling operations in respect of the railway operations occurring on the southern parts of the Metropolitan Rail Network including the Illawarra Line.

6. As at 13 April 2010, there were seven operational panels located within the control room of the Sydenham Signal Box that were operated by employees of the Defendant who were known as area controllers (also referred to as signallers) in respect of seven defined areas of the southern parts of the Metropolitan Rail Network.

7. The panel responsible for signalling operations on the rail infrastructure between Hurstville and Kogarah Stations was known as the "Hurstville Panel".

8. In the control room of the Sydenham Signal Box there were also three panels operated by Line Information Control Operators who were responsible for relaying information about the scheduling and running time of trains to passengers and staff at railway stations.

Signalling operations

9. At all material times, the Sydenham Signal Box was commissioned with an electronic signalling system called the Automated Train Running Information Control System ("ATRICS") which was used by the Defendant for the control of the movement of rolling stock. The ATRICS formed part of the overall signalling system operated by the Defendant. Each area controller panel had a number of ATRICS computer screens that provided the area controllers with a remote diagrammatic view of signals and rail infrastructure and the position of trains or other rolling stock within the area for which the area controller was responsible.

10. The position of trains or rolling stock is relayed to the ATRICS through a system of track circuitry known as Rail Vehicle Detection ("RVD") which is connected to railway signals and the ATRICS. When a train or rolling stock occupies a section of track in RVD territory (also known as a "block") the track circuit is completed and the position of that train or rolling stock within that section of track appears on the ATRICS screen as represented by a red rectangle, or a number of red rectangles (positioned end to end) depending on the length of train as it passes over one or more track circuits, with the number of the train represented above, below or forward of the red line with the letters such as "C488" identifying the train.

11. The presence of a train on the track circuits activates signals known as controlled signals (also known as "absolute signals" depicted on ATRICS screens as a base and connected coloured circle orientated in the direction of train travel) and automatic signals (also referred to as "permissive signals" depicted on ATRICS screens as a base and connecting coloured triangle orientated in the direction of train travel) by turning them to red to prevent other trains entering the occupied section of track.

12. An area controller can control the movement of rolling stock through the area of rail infrastructure for which they are responsible by interacting with the ATRICS to activate signals or sets of points by means of using a computer mouse to move a cursor across the ATRICS screen, opening menus and activating the particular signal or set of points.

13. The ATRICS provides, amongst other things, for the automatic routing of trains by an area controller activating Automatic Route Setting (ARS) or manually routing trains through the operation of signals and points.

14. At all material times, the ATRICS automatically makes a continuous record of the diagrammatic view on the ATRICS screen at each point in time and of all manual interactions of the area controller with the ATRICS. The Defendant is able to construct and review these records like point-in-time photographs of the ATRICS screen.

Controlled Signal Blocking

15. One of the signalling operations that could be performed by an area controller using the ATRICS was the application of blocks to signals in accordance with NWT 308 'Controlled Signal Blocking' ("CSB").

16. CSB is used to exclude rail traffic from a section of track to allow persons or vehicles to safely work in the danger zone in that section of the track. The danger zone is defined as everywhere within 3 metres horizontally from the nearest rail, and any distance above or below this 3 metres, unless a safe place exists or has been created.

17. CSB is one of five forms of worksite protection provided by the Defendant's Network Rules and Procedures that may be used to ensure the safety of persons working on or near rail track (also known as a 'work on track method').

18. It is the responsibility of the protection officer to assess the risks at the track worksite and to request and confirm the implementation of the appropriate method of protection to ensure safety.

19. One way CSB may be implemented in accordance with the Defendant's Network Rules and Procedures is by activating controlled signal(s) to ensure they remain at "red" or are "blocked". On approaching a controlled signal that is set to red and has blocking facilities applied under CSB, a train driver is required to stop the train until the signal changes, unless the area controller gives permission for the driver to pass the controlled signal at stop.

20. The implementation of CSB in this way requires an area controller to interact with the ATRICS by using a computer mouse to move a cursor on the ATRICS screen above the controlled signal, open a menu and apply a block to that controlled signal. A controlled signal by definition is a signal that can be manually activated by an area controller in this way. The ATRICS records these actions, the time those actions are taken and the position of any trains or rolling stock at the time CSB is activated in the ATRICS logs.

21. The ATRICS screen displays the location of all rail traffic on the sections of track for which the area controller is responsible. For example, the presence of a train will be depicted as a red rectangle and will be positioned on the particular rail line the train is travelling on.

Voice communications

22. At all material times, the Sydenham Signal Box was equipped with three systems for voice communications:

(a) The MetroNet Train Radio ("MetroNet") system for radio communications between area controllers, train drivers and train controllers. At Sydenham Signal Box, each area controller panel was equipped with a MetroNet Radio that was operated by the area controller by interacting with a computer screen, a DTe60 keyboard and a telephone handset.

(b) The Voice Communication System ("VCS") for communications through the MetroNet Radio or with landlines and mobile phones, which is operated by area controllers from a touchscreen panel and a telephone handset.

(c) Two desktop telephones, the General Administration telephone and the Network Operations phone, which are desktop consoles operated by area controllers in the same manner as a digital telephone.

23. At all material times, the Defendant had in place a system for automatically recording all voice communications via the MetroNet Train Radio, the VCS or telephones between area controllers and protection officers, train drivers and train controllers and to record the time those communications took place ("audio logs").

24. At all material times, the Defendant had, as part of its safety management system ("SMS"), Network Rules, Network Procedures, and Operator Specific Procedures ("OSP") relating to how voice communications should be conducted.

25. NPR 721 'Spoken and written communication' provides that standard terms must be used to convey particular meanings and how emergency communications must be conducted.

26. NGE 204 'Network communications' provides that all voice communications must be clear, brief and unambiguous and if the communication concerns a work on track method such as CSB, that the receiver of a message repeat back the message to the sender and the sender must confirm the message has been repeated correctly.

27. NGE 204 provides that if voice communication recording equipment is available it must be used to record network control communications and the recordings must be kept for at least 28 days.

28. At all material times, the Defendant was able to review the audio logs of voice communications to and from Sydenham Signal Box.

CSB Network Rules and Procedures

29. At all material times the Defendant had, as part of its SMS, Network Rules, Network Procedures, OSPs, General Orders and Safety Instructions on which it relied for the safety of its railway operations, including the protection of worksites in the rail corridor by CSB and to respond to emergency situations.

30. The Network Rules and Procedures that are relevant to the CSB method of worksite protection included:

(a) NWT 300 'Planning work in the Rail Corridor';

(b) NWT 308 'Controlled Signal Blocking';

(d) NPR 703 'Working using controlled signal blocking';

(e) NPR 721 'Spoken and Written Communication';

(f) NGE234 'Responsibilities of Signallers';

(g) OSP 2 'Carrying Out Activities Using Either No Authority Required (NAR) or Controlled Signal Blocking (CSB)';

(h) OSP 21 'Signal Box Management'.

31. NWT 300 and NWT 308 provide that CSB is an appropriate method of protection for work involving no tools, work involving light powered or non-powered hand tools or to allow vehicles to cross the track at departmental level crossings or livestock to cross the track.

32. NWT 300 provides that all worksites within the rail corridor must have a protection officer whose primary duty is to keep the worksite and the workers safe.

33. lf a protection officer has carried out a safety assessment of the risks at the proposed work in the danger zone and has determined that CSB is the appropriate level of protection, NWT 308 provides that unless CSB is used to protect minor repairs to rail traffic, a protection officer must ensure that one of the following three methods is available:

(a) two consecutive controlled signals can be set at STOP and with blocking facilities applied; or

(b) an ESML handle can be removed to exclude rail traffic; or

(c) one controlled signal can be set at STOP with blocking facilities applied, and either a set of points can be secured to prevent access, or an easily-reached safe place is available and a lookout is provided.

34. NWT 300, NWT 308 and OSP 2 require a protection officer to develop a worksite protection plan which identifies the protection that will be used and the location of an easily accessible safe place at the worksite if necessary. They also require a protection officer to provide workers with a pre-work briefing about the protection arrangements in place.

35. NWT 300 and NWT 308 provide that area controllers may only authorise CSB for signals within their area of control.

36. In order to request CSB to protect a worksite, the Network Rules and

Procedures require a protection officer to do the following things:

(a) contact the area controller responsible for the section of track to be protected and state the protection officer's name and the location of the work: NPR 703;

(b) state the intended start and finish times or duration of the work: NPR 703, OSP2;

(d) ask the signaller to exclude rail traffic by setting the controlled signals to STOP with blocking facilities applied, or authorising the removal of the ESML handle to set signals at STOP: NPR 703;

(e) before commencing work, confirm from the area controller that the controlled signals have been set to stop with blocking facilities applied and that there is no rail traffic approaching the worksite: NWT 308, NPR 703;

(f) obtain an assurance from the area controller that CSB will be maintained until removed on the authority of the protection officer: OSP 2.

37. In order to authorise CSB to protect a worksite, the Network Rules and Procedures require an area controller to do the following things:

(a) ensure that there is no rail traffic approaching the worksite by checking that the line is clear between the controlled signals being used for protection and the worksite: NWT 308, NPR 703;

(b) ensure that the relevant signals to be used for protection are controlled signals: NPR 703;

(d) speak to the train controller about the request to exclude rail traffic: NWT 300, NWT 308, NPR 703;

(e) set the controlled signals to stop and apply blocking facilities: NWT 308, NPR 703;

(f) repeat back the location and duration of the proposed work and the controlled signals to be blocked: NGE204.

38. NWT 308 provides that an area controller must not remove CSB until the protection officer has told the area controller that the worksite is clear.

39. The position of train controller has a general oversight function in relation to whether the request to exclude rail traffic can be accommodated according to the current requirements for the running of trains.

Emergency procedures and training

40. Emergency situations that may arise within the Defendant's railway operations include many situations, including a train approaching an unprotected worksite.

41. At all material times the Defendant had, as part of its SMS, Network Rules, Network Procedures, OSPs, General Orders and Safety Instructions on which it relied for the safety of its railway operations, including responses to emergency situations.

42. The Network Rules and Procedures that were relevant to emergency responses included:

(a) NGE 204 'Network communication';

(b) NGE 206 'Reporting and Responding to a Condition Affecting the Network';

43. NGE 204 provides that emergency communications must be given priority and be answered immediately.

44. NPR 721 provides that all emergency communications must be commenced by the sender stating "Emergency, Emergency, Emergency''.

45. NGE 206 provides how a network control officer (which includes an area controller) must report and respond to unsafe conditions affecting or potentially affecting the network.

46. NGE 206 also provides that a network control officer must, as necessary:

(a) arrange to warn drivers and track vehicle operators of rail traffic approaching the affected portions of line;

(b) arrange to prevent rail traffic from approaching the affected portions of line, and apply blocking facilities as necessary;

(d) ask maintenance representatives to investigate.

47. At all material times, the Defendant had in place the following controls to be implemented by area controllers in the event of an emergency, such as a train heading towards an unprotected worksite:

(a) the use of the MetroNet "All Stop" key and icon on the MetroNet keyboard and VCS that could send a text message to the train driver's train radio, fitted in the train driver's cabin, directing the driver to slow down and then to stop;

(b) the use of either of the broadcast keys marked "BRCST" on the MetroNet or the icon "BROAD CAST" on the VCS that allowed an area controller to broadcast a warning to every train driver on the track;

(d) arrange for the 1500V supply to be isolated in accordance with NGE 228;

(e) the use of telephones to inform a train controller of the imminent danger of a train approaching a worksite.

48. At the date of the incident, the Defendant had provided training to area controllers, through periodic safe working re-certifications and localised training assessments, as to how to use the MetroNet and VCS All Stop button/icon and the Emergency Broadcast key/icon and how to contact a train driver or protection officer on the MetroNet Radio, VCS or desk telephones.

Defendant's employees

49. As part of its railway operations, the Defendant employed Mr Wayne Farr as an area controller grade 3 at Sydenham Signal Box. Mr Farr had worked as an area controller grade 3 since December 2001 and had worked regularly on the Hurstville Panel.

50. As part of its railway operations, the Defendant operated Kogarah Station and employed customer service attendants at that station.

51. As part of its railway operations, the Defendant operated train C488 and employed a train driver who was allocated to drive train C488 on 12 and 13 April 2010 and a train controller located at Central Station in the Rail Management Centre.

52. At all material times, the area controllers at the Sydenham Signal Box, including Mr Farr, were under the supervision of the Sydenham Signal Box Manager. No other supervisor was provided to supervise the employees working at the Sydenham Signal Box.

Swetha International Pty Ltd

53. The Defendant had contracted Swetha International Pty Ltd ("Swetha") to carry out station corridor cleaning work for the Metropolitan Rail Network, including at Hurstville and Kogarah Stations. Under the agreement between the Defendant and Swetha, a protection officer was provided by Swetha for every 3 or 4 track workers.

54. On 12 and 13 April 2010, Swetha employed rail safety workers who were tasked with station corridor cleaning work at Hurstville and Kogarah Stations including a protection officer and four track workers (the "work group"). The Protection Officer had worked as a protection officer for Swetha for approximately 2½ years prior to the incident. Mr Tamati Grant, the deceased worker, had worked as a track cleaner for Swetha for approximately 2½ years prior to the incident.

The incident

55. On 12 April 2010 prior to his shift commencing, the Protection Officer prepared worksite protection plans for the station corridor cleaning work to be performed at Hurstville and Kogarah railway stations during that night shift by the work group. The Protection Officer met with the work group at a local petrol station where he provided a pre-work briefing to the work group by identifying hazards and the protection arrangements to be used for the station corridor cleaning before the shift commenced.

56. The work group travelled first to Hurstville Station where the Protection Officer telephoned the Hurstville Panel at or about 11:58:00pm on 12 April 2010 to request CSB as the appropriate method of protecting the workers whilst cleaning beside Hurstville Station. Mr Farr was rostered on from 10:00pm on 12 April 2010 on the Hurstville Panel and answered the telephone call from the Protection Officer. The cleaning of the rail corridor at Hurstville Station was then completed with CSB being applied to the lines adjacent to Platforms 1, 2, 3 and 4 by Mr Farr at the request of the Protection Officer.

57. The work group then moved to Kogarah Station when the Protection Officer contacted Mr Farr from his mobile telephone at or about 12:59:05am on 13 April 2010 and the following conversation was recorded as MetroNet audio file 503095009986741:

WF: Hello Hurstville panel.

PO: How are you Wayne, it's *** again.

WF: Yeah mate.

PO: I'm just at Kogarah, is there any chance of getting a CSB on one or three?

WF: At Kogarah?

PO: Yeah.

WF: I'll do the up and Wolli does the down.

PO: Down yeah.

WF: Yep so yeah I can give you three.

PO: Platform three?

WF: Yeah.

PO: No worries, can I get that now?

WF: Yep no worries blocks on.

PO: All right I'll give you a call back in ten.

WF: All right mate.

PO: Thanks mate. Bye.

Note:

(a) "WF" is Wayne Farr.

(b) "PO" is the Protection Officer".

58. The work group then proceeded to clean the rail line adjacent to Platform 3 at Kogarah Station.

59. When the work group had finished cleaning the line adjacent to Platform 3 at or about 1:06:59am, the Protection Officer telephoned Mr Farr from his mobile phone and the following conversation was recorded as MetroNet audio file 503095009986771:

WF: Hurstville.

PO: How are you Wayne, I've just fulfilled a CSB on three.

WF: Yeah.

PO: Any chance of getting one?

WF: Yeah no worries.

PO: Yeah on one. Thanks mate.

WF: Righto mate. Blocks are on.

PO: Thank you.

WF: Ta.

60. The Protection Officer then instructed the work group to begin cleaning the Up Illawarra Local line starting at the southern end of Platform 1 and moving northwards.

61. At the time that Mr Farr authorised CSB for the Up Illawarra Local line for work adjacent to Platform 1, train C488 was past the relevant controlled signals SM914IL, SM924UIL and SM922DIL on the Up Illawarra Local line and was within the section of track that was to be protected by the CSB. There were no controlled signals between the location of the train and the worksite at the time Mr Farr authorised the CSB for the Illawarra Local Line.

62. A block was not placed on signal SM914IL by Mr Farr until 01:08:18am. No other block was placed on the relevant controlled signals at or near Hurstville Station.

63. When the Protection Officer requested CSB for the line adjacent to Platform 1 at Kogarah Station, he failed to comply with the following requirements under the Defendant's Network Rules and Procedures:

(a) state the duration and location of the work as being at Kogarah or to obtain the numbers of the signals to be set to STOP and blocked under CSB as required by OSP 2;

(b) confirm with Mr Farr that the signals had been set to stop and the blocking facilities applied as required by NWT 308 and NPR 703;

(c) confirm with Mr Farr that there was no rail traffic between the controlled signals being used for protection for the workers as required by NWT 308 and NPR 703;

(d) obtain an assurance from Mr Farr that CSB will be maintained until removed on the authority of the protection officer as required by OSP 2.

64. When Mr Farr authorised CSB for the line adjacent to Platform 1 at Kogarah Station, he failed to comply with the following requirements under the Defendant's Network Rules and Procedures:

(a) give the Protection Officer the numbers of the controlled signals to be blocked as required by OSP 2;

(b) ensure there was no rail traffic approaching the worksite by checking that the line was clear between the controlled signals being used for protection and the worksite as required by NWT 308 and NPR 703;

(d) set the controlled signals SM914IL, SM924UIL and SM922DIL to stop and apply blocking facilities before authorising CSB as required by NWT 308 and NPR 703;

(e) before authorising CSB, inform the protection officer that the correct signals have been set to stop with blocking facilities applied and that there is no rail traffic in the section to be protected as required by NPR 703 and OSP 2;

(f) repeat back the location and duration of the proposed work as required by NGE204.

65. After Mr Farr had authorised the CSB, he became aware from the ATRICS screen of the presence of train C488 on the Up Illawarra Local Line in the section of track for which he had authorised CSB. At 01:07:41am, Mr Farr telephoned Kogarah Station and his call was answered by the Customer Service Attendant on duty and the following conversation was recorded as MetroNet audio file 503095009986774:

CSA: Kogarah.

WF: Yeah mate can you make an announcement for us on one and tell anyone near the track that wants to work to just wait for this up coasty coming.

CSA: Yeah no worries.

WF: Thanks mate.

CSA: Thanks mate ta ta.

WF: Ta ta

Note:

"WF" is Wayne Farr.

"CSA" is the Customer Service Attendant at Kogarah Station.

66. Mr Farr failed to comply with the Defendant's Network Rules and Procedures regarding emergency responses in that he failed to implement the following:

(d) an arrangement for the 1500V supply to be isolated in accordance with NGE 228;

(e) the use of telephones to inform the train controller of the imminent danger of a train approaching a worksite.

67. At or shortly after 01:08:02am, the Customer Service Attendant at Kogarah Station made an announcement on the public address system for the workers on Platform 1 to clear the track.

68. At about the time the announcement was made, train C488 came around a left hand bend approaching Kogarah Station. The driver of train C488 sighted the workers on the track near Platform 1, sounded the train horn and applied the emergency brakes. There were no signals between Hurstville Station and Kogarah Station that required the driver to stop or slow the train down.

69. On seeing the train enter Kogarah Station from the southern end, the Protection Officer was able to move to a safe place in an alcove at the southern end of Platform 1 and three track workers moved onto the rail track adjacent to Platform 2.

70. Mr Grant moved in the opposite direction to the other three track workers and attempted to climb onto Platform 1 which was approximately 1.4 metres high when he was struck by the leading locomotive of train C488 and fatally injured.

71. At about 01.09:21am, the driver of train C488 reported the incident to Mr Farr on the MetroNet and the Protection Officer contacted emergency services on his mobile telephone. During the call from the Protection Officer reporting the incident, the audio recording of the MetroNet recorded ambient noise in the control room including the words "Better pack up the computers".

72. After the incident, Mr Farr was relieved of his role as area controller from the Hurstville Panel and then left the control room and the Sydenham Signal Box unaccompanied for approximately 15 minutes.

73. On returning to the control room, Mr Farr was taken by ambulance to Royal Prince Alfred Hospital for treatment. A Network Operations Superintendent ("NOS") attended Royal Prince Alfred Hospital and conducted a breath test which showed a negative reading for alcohol. No blood or urine sample was taken from Mr Farr at the hospital.

74. On 21 December 2012, Mr Farr's laptop was seized by the NSW Police Force.

75. Mr Allan Watt, an Electronic Evidence Expert, who was employed by the NSW Police Force, examined the laptop computer taken from Mr Farr. A report prepared by Mr Watt dated 20 March 2012 disclosed that:

(a) the laptop computer had been connected to the internet on 13 April 2010 at 01:07:02;

(b) the internal clock of the laptop computer was 1 minute 59 seconds faster than the internet server to which it was connected;

(d) the computer modem had been reconnected manually by the user (not automatically) at 01:07:02.

76. This evidence when matched and adjusted to the times of the Defendant's audio log records indicated that Mr Farr was using the laptop computer at or about the time the Protection Officer contacted Mr Farr at 1:06:59am to request CSB for the line adjacent to Platform 1 at Kogarah and when Mr Farr authorised CSB for the Up Illawarra Local line for work adjacent to Platform 1.

77. By using a personal laptop computer for non-work related purposes whilst performing rail safety work as an area controller, Mr Farr failed to comply with the Defendant's OSP 21 and other General Orders and instructions.

78. Other area controllers at the Sydenham Signal Box also were using personal laptop computers in the control room during the night shift on 12-13 April 2010.

79. The Defendant issued an OSP 21 dated 3 September 2009, which applied to the management of the Sydenham Signal Box complex. OSP 21 carried a warning that "Private television sets, radios and other audio devices are not permitted in the control area of any signal box."

80. No Network Rule or Procedure, other than OSP 21, issued by the Defendant specified a prohibition on area controllers bringing personal laptop computers and other electronic devices into the control rooms of signal boxes.

81. OSP 21 also required area controllers to 'carefully read' and 'acknowledge' weekly notices, general orders and other safety documentation affecting their area within the Defendant's rail operations.

82. The Sydenham Signal Box Manager issued a memorandum dated 11 June 2009 reminding area controllers that the use of personal computers in the workplace was strictly prohibited. A copy of the memorandum dated 11 June 2009 was given to each area controller in the Sydenham Signal Box.

83. After the incident, the Defendant issued General Order 11/10. According to the Manager, Metropolitan Network Control, the General Order was issued because of anecdotal evidence brought to his attention prior to 13 April 2010 that staff working the night shift at the Sydenham Box were using laptops while performing signalling duties. The General Order was issued to reinforce OSP 21 but was not made in response to the incident.

84. After the incident, OSP 21 was amended by the Defendant to read "The use of distracting electronic devices for non-train working operations is not permitted in the control area of any signal box."

Supervision of area controllers

85. Network Rules and Procedures relied upon by the Defendant to ensure the safety of worksites under the CSB method of protection depended on area controllers accurately:

(a) identifying on the signalling system the location and direction of travel of rail traffic;

(b) identifying the correct controlled signals to be blocked to protect a worksite on a particular line; and

(c) interacting with the signalling system to set the correct controlled signal(s) to stop and applying blocking facilities or securing points.

86. As at the date of the incident, the Sydenham Signal Box Manager was in charge of the day-to-day running of the control room and had approximately 53 staff reporting to him in that position.

87. The Sydenham Signal Box Manager would attend the Sydenham Signal Box during the morning shift and sometimes on the afternoon shift, and rarely attended the Sydenham Signal Box on the night shift.

88. At the time of the incident, there was no supervisor routinely present at the Sydenham Signal Box complex on night shifts. In particular, area controllers were not supervised:

(a) to ensure all staff at the Sydenham Signal Box are complying with OSP 21, including by ensuring that distracting electronic devices are not being used;

(b) to monitor and review compliance by area controllers with Network Rules and Procedures regarding the implementation of CSB, including by communicating safety critical information as required by the Network Rules and Procedures.

89. On the night of the incident there was no supervisor present, until a Network Operations Superintendent ("NOS") attended the Sydenham Signal Box after the incident.

90. At various times a NOS would attend the Sydenham Signal Box in case of serious delays or an incident. The NOS was normally based outside the Sydenham Signal Box complex.

91. Under the Defendant's performance targets in place prior to the incident, there were to be two safe working inspections carried out every month within the Illawarra, South and CBD Region by the Line Managers of the signal boxes. The signal boxes to be inspected and the dates and times of those inspections were determined at the discretion of the Regional Managers. The inspections required the Line Managers to complete a checklist which included at line 103 that "Controlled Signal Blocking (CSB) procedures being followed". A safety inspection of Sydenham Signal Box was carried out by the Defendant on 8 February 2010, which resulted in line 103 being ticked on the checklist.

92. Prior to the incident, the Defendant had received reports from the safety checks carried out by Line Managers on area controllers. The Defendant had received reports of irregularities in the application of the Defendant's Network Rules and Procedures being followed including reports of area controllers omitting to speak to the train controller when applying CSB.

93. Prior to the incident, the Defendant had identified the absence of supervision for the afternoon and night shifts of area controllers at the Sydenham Signal Box complex as an issue it had to address.

94. At the time of the incident, the train controllers located at the Rail Management Centre had 24hour shift supervisors provided by the Defendant 7 days of the week.

95. At all material times, it was reasonably practicable for the Defendant to provide supervision of the area controllers located at the Sydenham Signal Box to assess and ensure, so far as reasonably practicable, compliance with the relevant CSB Network Rules and Procedures, as demonstrated by the measures undertaken by the Defendant post-incident.

96. Since 20 November 2011, the Defendant has provided supervision for all area controller shifts at the Sydenham Signal Box complex. A new Assistant Area Manager now supports 5 shift supervisors to ensure, so far as reasonably practicable, compliance by the rail safety workers with Network Rules and Procedures. In addition, the new position of Area Signal Box Manager has been created.

97. As at 30 July 2012, the Defendant has employed 25 shift supervisors, 3 Area Signal Box Managers, 7 Assistant Area Signal Box Managers and an Incident Response Manager to provide additional supervision in signal boxes.

98. Since the incident, the Defendant has increased the number of inspections that are carried out to check safety compliance by area controllers at Sydenham Signal Box complex. Under the new system, Line Managers may, at any time, undertake safety inspections and prepare a report.

99. Since the incident, the Defendant also has:

(a) issued a number of Safe Tracks communications to area controllers and protection officers aimed at re-enforcing the requirements under the relevant network rules and procedures and identifying improvements in CSB practices;

(b) Network Rule NWT 308 has been amended from requiring area controllers "speak to" the train controllers before issuing a CSB, to require area controllers to "talk to" the train controllers before issuing a CSB.

Auditing voice communications

100. The effective implementation of the Defendant's Network Rules and Procedures requires area controllers, train controllers and protection officers to communicate all safety critical information fully and clearly as prescribed by the Network Rules and Procedures.

101. If a protection officer or an area controller failed to comply with the relevant Network Rules and Procedures when requesting or authorising a CSB, that would give rise to a risk of a CSB being authorised when there was a train in the section heading towards an unprotected worksite.

102. At the time of the incident, the Defendant had a system for auditing voice communications, but it was not specifically targeted at communications between area controllers and protection officers or area controllers and train controllers relating to the use of the CSB method of worksite protection.

103. Since the incident, an audio monitoring program for monitoring compliance of area controller communications with protection officers has been introduced.

104. At all material times, it was reasonably practicable for the Defendant to audit recorded voice communications relating to the use of the CSB to assess compliance by its employees with the relevant Network Rules and Procedures.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 16 April 2013

Industrial Relations Commission New South Wales

Judgment

DELIBERATION

ANNEXURE

AGREED STATEMENT OF FACTS

Industrial Relations Commission
New South Wales