[2024] ACTMC 17

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Workplace Injury

Work Health and Safety Act 2011 (ACT) ss 3, 32

Crimes (Sentencing) Act 2005 (ACT) s 7

SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191

Tyrone Smithers v Capitol Chilled Foods [2023] ACTMC 5

Brooke Grey v Agnew Building Supplies [2023] ACTMC 13

The Australian Capital Territory as represented by Transport Canberra and City Services (Defendant)

• 1․ The defendant has pleaded guilty to a single charge pursuant to section 32 of the Work Health and Safety Act 2011 (ACT) ('the Act').
• 2․ As a body corporate the maximum penalty is $1.5 million.
• 3․ A brief summary of the facts follows. The defendant, through the Transport Canberra and City Services Directorate, operates Transport Canberra (including the ACTION bus services) from a variety of locations in Canberra.
• 4․ One of those locations is 5 Cohen Street Belconnen where maintenance is undertaken on ACTION buses ('the Belconnen Depot').
• 5․ On 3 November 2021 workers for the Defendant were performing a maintenance task of greasing the upper grease nipples of the kingpins of the steering mechanism of a Scania "tag steer" public passenger bus.
• 6․ At the time, the grease nipples of the kingpins were positioned such that the task could not be completed from the service pit underneath the bus. Instead, an ad-hoc procedure was created where the bus would be parked over a service pit with its front wheels raised of the ground.
• 7․ With the engine running, which kept the power steering working, one worker would sit in the driver's seat and turn the front wheels to full lock and hold the steering wheel in that position whilst another worker would crouch beside the vehicle and manoeuvre inside the wheel arch into the wheel well and apply grease to the nipples. This crouching worker was assisted by a third worker in the service pit.
• 8․ The procedure was carried out without incident on the driver's side front wheel. The worker manoeuvring inside the wheel arches, the victim, Mr Marando, then moved to the passenger side front wheel and the worker in the driver's seat turned the wheel to the full lock again in the other direction.
• 9․ Mr Marando then manoeuvred inside the passenger wheel arch into the wheel well. Whilst still completing the process, another worker dressed in similar high visibility clothing walked past the front of the bus. The worker sitting in the driver's seat mistook this other worker for Mr Marando and started to take the steering off full lock. As the left front wheel straightened in the wheel arch it crushed Mr Marando against the chassis.
• 10․ Mr Marando cried out in pain and the worker underneath also raised the alarm. The worker in the driver's seat turned the wheel to allow Mr Marando to free himself, and Mr Marando then collapsed a few feet away. His colleagues rushed to his aid, and he was then taken to hospital.
• 11․ Mr Marando suffered serious injuries, including multiple fractured ribs and two partially collapsed lungs.
• 12․ The subsequent Worksafe investigation revealed that at the time of the incident there was no documented procedure regarding the maintenance task and the specific hazard and risk had not been identified. The 'ad-hoc' method described above had been implemented by staff at the Belconnen Depot and the three workers carrying out the procedure on 3 November 2021 were taught to use this method through on-the-job training.
• 13․ Within 10 days of the incident, the Defendant arranged for the installation of offset grease nipples that enabled the process to be completed from the service pit on all of its Scania "tag steer" buses. By 22 November 2021 the Defendant had developed a Safe Operating Procedure for the maintenance task that required, amongst other things, that the bus ignition be turned off, the bus be secured and the workers apply grease from the service pit below. The procedure was amended at a later date to require that the driver turn off the ignition and place a 'do not operate' cover on the wheel.

• 14․ Before dealing with the subjective factors relevant to the defendant I will deal with the objective factors.
• 15․ As I have previously noted in both Smithers v Capitol Chilled Foods and Grey v Agnew Building Supplies, the penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: section 3 of the Act.
• 16․ I have also had regard to the principles of sentencing set out in section 7 of the Crimes (Sentencing) Act 2005 (ACT). It seems to me, when having regard to those principles and that in section 3 of the Act, there is a strong need for the sentence imposed to reflect the principle of general deterrence. Every employer must ensure safe workplaces for their workers.
• 17․ I quote from Mr Marando's Victim Impact Statement:

"The ongoing trauma from this incident remains with me each and every day and I will be never be the same person. I have gone from a mentally and physically healthy person and now, each and every day is now a challenge - who I was before and after 3 November 2021 are two very different people. I hope no other person employed with TCCS will ever have to go through what I and may family have had to endure over the past two and a half years".

• 18․ I note that the fact that injury has been caused does not necessarily mean that the gravity of the seriousness of the breach should be assessed in that context.
• 19․ Rather, the Act is concerned generally with risks to health and safety, and under part three concerned specifically with the duties owed with respect to health and safety. It is the extent that the failure to ensure that employees are not exposed to the risk to their health and safety which determines the objective gravity of any offence.
• 20․ The consequences of the failure generally do not. That is not to say that the death or injury occurring is necessarily irrelevant. The occurrence of any accident resulting in death or injury of a particular kind may inform an assessment of, first the existence of the risk, and secondly the nature and seriousness of the risk.
• 21․ Hence in determining the gravity of the seriousness of the offence, I must assess firstly the extent of the departure from the duty owed, secondly the extent of the risk to health and safety thereby created, and thirdly the likelihood of the risk of particular harm resulting.
• 22․ Put another way, in a case such as the present, the gravity of the seriousness of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that workers were not exposed to risks to their safety.
• 23․ An offence will be serious where there is an obvious and foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible.
• 24․ How and why the failure occurred is however, relevant to sentencing. In assessing the defendant's culpability, it will be relevant to know for example whether the breach was the result of failure to adhere to systems put in place by management or, in the alternative, was a result of failure by management to establish adequate safety systems and procedures in the first place.
• 25․ In the decision of SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191 at [68] Strathdee DCJ usefully sets out a summary of the factors to be considered in respect to the objective seriousness of the offence, which I will now recite from.
• 26․ The matters relevant to the objective seriousness for a section 32 offence include:
  1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where potential injuries are severe regardless of whether they are likely to materialise.
  2. The availability of steps to minimise or eliminate the risk.
  3. Whether those steps are complex, burdensome, or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious.
  4. Whether the risk was known or ought reasonably to have been known or identified by the offender.
  5. Whether the risk was an obvious or clear one.
  6. The vulnerability of workers exposed to the risk.
• 27․ In my view I make the following findings as to the seriousness of the risk.
• 28․ The risk of the worker being seriously injured or killed as a result of being crushed by the front wheel during the ad-hoc procedure was high.
• 29․ Further, in the agreed statement of facts the defendant concedes that the procedure used was ad-hoc and no safe operating procedure was in place at the time.
• 30․ The fact that the procedure was carried out relatively infrequently does not mitigate the defendant's culpability. It is the risk associated with the procedure itself that informs the objective seriousness.
• 31․ The gravity of the risk was significant as there was the potential for a very serious injury or fatality.
• 32․ Taking appropriate measures would not have entailed significant burden or cost. The steps taken post the incident were not complex, burdensome, nor mildly inconvenient. Exhibit 4 confirms that the costs of replacing the grease nipples for all Scania 'tag-steer' vehicles in the fleet was in the order of $1,000.00. The new safe operating procedure is not complicated and was inexpensive to create. Mitigating steps could easily have been taken, which makes the offending more serious.
• 33․ It seems to me that the risk involved in the procedure was obvious. It involved the worker operating under a vehicle in a confined space where the vehicle was running, and powerful hydraulics were being used to create the space in the wheel well that the worker had to manoeuvre into. Getting in and out of the space quickly was not easy. I consider the inherent danger in the ad-hoc procedure a particularly aggravating factor.
• 34․ Having had regard to those principles it seems to me, firstly, the extent of the departure from the duty owed was significant. Secondly the extent of the risk to health and safety thereby created was in my view also significant, as indeed demonstrated by the injury sustained to Mr Marando.
• 35․ Thirdly as a result of that departure from the duty owed, the likelihood of risk of particular harm resulting was high. The risk was as a result of the failure by the Defendant to identify the risk and establish an adequate safety procedure.
• 36․ It is therefore my view that the objective gravity of the seriousness of the breach is to be considered as high overall.
• 37․ In my view, this determines that I should consider the starting point for the financial penalty to impose as $500,000.

• 38․ I then turn to the subjective factors of the defendant. The defendant comes before the court with no prior convictions. The defendant is to be regarded of good character.
• 39․ The defendant indicated a plea of guilty at the earliest opportunity.
• 40․ The defendant proffered an enforceable undertaking with a number of strategies which it estimates will cost something in the order of $750,000 to implement, dealing with safety issues and education across the whole organisation. Although these undertakings were not accepted by the WorkSafe Commissioner, the defendant has indicated it will still implement them.
• 41․ It seems to me in those circumstances where the defendant has entered a plea of guilty at an early time, there is an indication of both contrition and remorse and a full acceptance of responsibility. The defendant's lack of prior convictions and the steps it has taken to ensure that the risk has been eliminated for this procedure in the future, and the general steps it is taking across the organisation should also count in its favour. I'm prepared to afford the maximum discount of 25%, notwithstanding the strength of the prosecution case against the defendant.
• 42․ Accordingly, I impose a conviction upon the defendant and a fine of $375,000. I further order the defendant pay the informant's costs in the amount of $35,000.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Lawton