Angry outburst at Pike sentencing

DEIDRE MUSSEN
Last updated 14:55 26/10/2012
Joseph Ray Dunbar
YOUNGEST: Joseph Ray Dunbar is the youngest of the miners, he had just turned 17 the day before the explosion.
ben rockhouse
LOST: Pike River miner Ben Rockhouse
Josh Ufer
DRILLER: Josh Ufer.

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Family members of dead miners screamed obscenities after a Pike River drilling company was fined $46,800 in a Greymouth court today.

Representatives of VLI Drilling had to be escorted out of the courtroom while family members were taken outside by security guards after the sentencing.

VLI Drilling, a Sydney-based subsidiary of Valley Longwall International, admitted in July three health and safety failures over the November 2010 explosion that killed 29 men at the West Coast underground coalmine.

The fine of $46,800 was representative of all three charges, the court heard, infuriating family members.

A maximum fine of $250,000 was possible for each charge, brought under the Health and Safety in Employment Act.

However, Judge Jane Farish set the starting point for VLI Drilling's fine at $90,000 but gave credit for pleading guilty, paying reparation to families and changing its work practices.

The charges focused on the company's failure to take all practicable steps to protect the safety of its employees and other workers at the mine because it did not ensure its drilling rig was safe to use.

The court heard that as part of its contract, Pike River Coal was supposed to do safety checks on the drill rig but had failed to do so and VLI Drilling had failed to ensure those checks were done.

Three of the dead men worked for VLI Drilling - driller Josh Ufer, 25, Ben Rockhouse, 21, who was the driller's offsider, and Joseph Dunbar, who turned 17 the day before the first explosion and was the youngest to die in the blast.

He was due to start working for the company three days after the blast but wanted to start early and went underground for the first time on the day of the explosion.

Dunbar's father, Dean Dunbar, was earlier warned in the court over an outburst from the gallery during submissions by VLI Drilling's lawyer, Pheroze Jagose.

''I know this is hard to listen to,'' Judge Farish told Dunbar.

She told him she would be the one to decide on the case and called for him to be patient, otherwise he would have to leave the court.

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The judge refused VLI Drilling's plea for a discharge without conviction, saying its culpability was moderate rather than low.

It had claimed that would damage its international reputation and could have ''significant fiscal ramifications'', which was disproportionate to its offending, she said.

She said it was not enough for VLI Drilling to have faith in Pike River Coal when it had no mechanisms to monitor that required checks were done.

''VLI took very few steps to ensure there was a safe working environment.''

She stressed there was no causal link between the company's offending and the harm suffered by its employees as a result of the explosion.

The only connection was that the explosion was the catalyst to investigations into what could have been done better at the mine, leading to the charges.

However, Judge Farish there had been potential for significant harm.

She accepted the company had not departed from industry standards in how it ran the rig but said it was a large international company that had no enforceability to ensure it met its fundamental requirement to protect the safety of employees.

Since the explosion, it had introduced a pre-running check-list to ensure required monitoring of the drill rig was done before the machine could be operated.

Dean Dunbar was disappointed at the level of fine but said he had expected it would be about $40,000 to $50,000.

''If this is the way Valley Longwall runs its company all around the world, we need to be real careful about who we put inside these coalmines.''

He was gutted the company had its fine reduced for paying families reparation.

While he had received nothing, he was surprised to learn outside court his ex-partner, Philippa Timms, and her new partner, Gary Campbell, had received reparation.

Campbell, VLI Drilling's manager in New Zealand, took Joseph Dunbar underground on the day of the explosion.

Ben's father, Neville Rockhouse, was also disappointed in the case's outcome and criticised the company's lawyers for blocking families from giving victim impact statements.

''It's just another kick in the teeth.''

He called the level of fine ''a joke''.

Spokesman for many Pike families, Bernie Monk, said the case highlighted the problem that no one had been back into the mine since the explosion to uncover what happened.

''You get into a court like this and there's no answers.''

The then Labour Department, now part of the Ministry of Business, Innovation and Employment, laid the charges under the Health and Safety in Employment Act almost a year ago.

It also charged Pike River Coal (in receivership) and former chief executive Peter Whittall over the tragedy. Each charge carries a maximum fine of $250,000.

The ministry's lawyer, Brent Stanaway, today criticised VLI Drilling's plea for conviction and discharge.

Alternatively, it believed any fine should be no more than about $10,000 because it claimed its culpability was low.

''We are miles apart. This is not a case for discharge without conviction,'' Stanaway told the court.

Instead, the starting point for a fine should be $120,000, Stanaway said.

Two years before the explosion, Valley Longwall Drilling was contracted to do the mine's exploratory in-seam directional drilling programme for one to two months, but drilling continued until the fatal explosion.

It changed its name to VLI Drilling in May 2010.

The summary of facts showed Pike River Coal was supposed to complete weekly electrical inspections and weekly gas sensor calibration checks of the drilling machine.

However, none of its work orders for the electrical inspections had been completed for almost five months before the explosion and it had failed to do the weekly gas sensor checks, again for about five months before the blast.

VLI Drilling failed to ensure Pike River Coal had done the checks before allowing its workers to operate the rig, the summary said.

''The in-seam drilling being carried out by the defendant was a safety critical activity,'' it said.

''It was being carried out in an area of the Pike River mine that had limited ventilation. The activity had the potential to produce high volumes of methane.'' 

On the day of the explosion, the drilling rig's methane sensor was checked and was found to be faulty after it was believed it was stopping the rig at a lower level of methane than normal.

It was not known whether the rig was operating at the time of the explosion or if the power supply to it was in place.

The rig was operating after its six-monthly independent gas sensor calibration check expired in September 2010.

Jagose said Pike River had a statutory obligation to withdraw the rig if required checks were not done.

He said VLI Drilling met industry standards in managing its rig safely and was not to be a ''policeman''.

''We are not to ensure the statutory compliance by Pike,'' he said.

''The only reason Valley plays a role here is Valley could turn off the switch to its rig.''

Yesterday, the ministry applied to the court for permission to have victim-impact statements from six family members admitted as part of the sentencing.

Judge Farish declined the application after hearing arguments from both sides that focused on the legal definition of victim as defined in the Victim Rights Act.

The case against Pike River Coal was also called today in court over its nine charges alleging failures over methane, strata and ventilation management, mitigating explosion risk and impact, plus health and safety management for contractors, subcontractors and their employees.

In July, the company's lawyer told the court it would not defend the charges and would take no part in the legal process other than appearing at sentencing if charges were proved.

Judge Farish said today a formal proof hearing would be held next March into Pike River Coal's prosecution.

She said she had reviewed the evidence presented and found it complex, so wanted a counsel appointed to the court to assist her.

- The Press

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