AYTON -v- CITY OF ARMADALE [2020] WASCA 39 (1 April 2020)

1. The objects of the OSH Act are set out in s 5. Relevantly, they are:

(a) to promote and secure the safety and health of persons at work;

(b) to protect persons at work against hazards;

(c) to assist in securing safe and hygienic work environments;

(d) to reduce, eliminate and control the hazards to which persons are exposed at work;

(e) ...;

(f) ...;

(g) ... .

1. Section 21(2) of the OSH Act imposes the following duty:

(2) An employer or self‑employed person shall, so far as is practicable, ensure that the safety or health of a person, not being (in the case of an employer) an employee of the employer, is not adversely affected wholly or in part as a result of -

(a) work that has been or is being undertaken by -

(i) the employer or any employee of the employer; or

...

(b) any hazard that arises from or is increased by -

(i) the work referred to in paragraph (a)[.]

1. 'Practicable' is defined in s 3 to mean 'reasonably practicable', having regard to the various matters there set out.
2. It is not in issue that the appellant owed Mr Booth the duty imposed by s 21(2) of the OSH Act.
3. Section 21A(2) of the OSH Act provides that an employer who contravenes s 21(2) in circumstances which do not amount to gross negligence and which cause serious harm to a person, commits an offence and is liable to a level 3 penalty. At the relevant time, the level 3 penalty for a body corporate who was a first offender was a fine of $400,000.[7] The maximum penalty has since increased to $2 million.[8]

1. The facts of the offending were set out in a detailed statement of agreed facts which was read aloud by the prosecutor on 5 April 2018.[9] The primary judge incorporated the statement of agreed facts by reference in his reasons.[10] The agreed facts may be summarised as follows.
2. The respondent is a local government authority established pursuant to the Local Government Act 1995 (WA). In 2014, the City of Armadale comprised 19 suburbs, employed 345 full‑time employees and provided services to almost 30,000 dwellings.[11] Within the respondent's technical services directorate is the waste services department. The department is responsible for the respondent's waste disposal services and maintains a landfill site, accessible by the public, located at a site on Hopkinson Road, Hilbert (the facility).
3. To use the facility, members of the public enter and proceed to a weighbridge, where an attendant directs them along a dirt road to a particular dumping area, depending upon the type of waste they wish to dispose of.[12]
4. As at 10 August 2014, the supervisor at the facility was Mr Woodenberg, who, in turn, reported to another employee of the respondent, Mr Robert Druid‑Sutton.
5. As at 10 August 2014, there was a separate area of the facility for dumping green waste which had one public entry point (green waste area). Front‑end loaders operate at the facility, including at the green waste area, to push waste into piles after it is dumped by members of the public. On the day in question, two front‑end loaders were in use, including a Volvo L60F which was being operated by Mr Woodenberg. This loader was fitted with flashing lights and a reversing beeper which were operational.[13]
6. At approximately 11.30 am on 10 August 2014, Mr Booth arrived at the facility with green waste and was directed to the green waste area. Mr Booth was driving a white four‑wheel drive vehicle to which a trailer was attached. Mr Booth parked at the far western end of the green waste pile and proceeded to unload his trailer.[14]
7. Meanwhile, Mr Woodenberg was operating the Volvo L60F loader in the green waste area. He had started pushing up waste from the eastern side and was working his way towards the western end. There was no spotter present and no barrier between the loader and members of the public.[15]
8. After Mr Booth had finished unloading most of his trailer, he moved his vehicle forward in order to sweep it out and attach the tailgate back onto the trailer. Mr Woodenberg saw Mr Booth moving his vehicle and assumed that he had left the green waste area. He did not notice Mr Booth or his vehicle and trailer in the loader's rear‑view mirrors.[16] Mr Woodenberg erroneously believed that the area behind him was clear and reversed the loader. The loader struck Mr Booth from behind. The right‑rear wheel of the loader ran over Mr Booth's right foot and up his left leg. Upon hearing shouts from members of the public, Mr Woodenberg stopped the loader and drove forward, off Mr Booth's left leg and over his right foot. The immediate aftermath of the incident was captured on CCTV, which we have viewed.
9. Mr Booth was taken from the facility by ambulance to Royal Perth Hospital where he received treatment. Mr Booth suffered multiple injuries, including a deep perianal laceration extending to his rectum which required a stoma bag; a comminuted traverse fracture of his right second and third metatarsals on his right foot; a meniscal tear in his left knee and a left‑side cuboid fracture to his left foot.[17] Mr Booth has undergone several operations to treat the injuries he sustained and extensive wound management at Royal Perth Hospital. The effects of these injuries are described below.
10. As part of the statement of agreed facts, the respondent conceded that it was reasonably practicable for it to have carried out some or all of these measures:[18]

(1) To have enforced a Safe Work Procedure (SWP) for the operation of front‑end loaders at the facility while it was open to members of the public that included the following:

(a) the loader is only operated when a spotter is available and used in order to reduce the risk of harm to members of the public;

(b) the loader operator and spotter use a standard means of communicating with each other by way of hand signals or radio communication;

(c) the loader's operating area is separated from the public by suitable barriers and signage, and the area is closed to the public whilst the loader is operating;

(d) the spotter remains performing the role of a spotter whilst the loader is in use in order to identify any hazards and communicate these to the loader operator without delay;

(e) if a member of the public enters the loader's operating area, the spotter is to immediately notify the loader operator who is to cease operating the loader until the member of the public or vehicle is no longer present; and

(f) the barriers and signs are not removed until the loader has finished operating.

(2) To have fitted reversing cameras to the rear of the loaders used at the facility.

(3) To have provided training to employees at the facility who may operate a loader or provide spotter duties which included the role of each to the SWP.

(4) To have included a copy of the SWP in the induction package provided to all employees upon starting at the facility.

(5) To have ensured that all staff who worked at the facility knew of the location of the SWP and that it was readily accessible to them.

(6) To have ensured managers and supervisors enforced the practical application of the SWP.

(7) To have ensured that there was a system of review in place for the SWP to ensure it was still relevant and being applied.

1. There is some ambiguity about the use of the phrase 'some or all' of the measures. At the hearing before this court senior counsel for the respondent accepted, correctly in our view, that in pleading guilty the respondent was accepting that it should have adopted the practicable measures listed in [[[19]](2020_39.html#_Ref3551979 Vicariously, the failure by the City to 'effectively enforce' its directive on the day is the real problem for it, on analysis here, vis-à-vis Mr Druid-Sutton and Mr Woodenberg. The City is ultimately responsible because, at the end of the day, it is at the top of the employment hierarchy. The buck stops with the City and it must itself carry an end responsibility, as it accepted, for what went wrong on the day leading to Mr Booth's injury by reason of the deficiencies of its employees at the waste facility. The question is what to make of that fault by the City in the overall context here?

1. As to ground 3, his Honour observed that Mr Booth's injury was caused by Mr Woodenberg failing to comply with the 'proper hazard avoidance directive of [the respondent] of not letting front‑end loaders operate in reverse near members of the general public'.[57] He said that the respondent did not know of, acquiesce in or ratify this misconduct.[58] Having regard to the respondent's mitigating factors, including the early plea of guilty, the absence of prior convictions under the OSH Act, its remorse and its 'lack of any suggestion of an underlying culture of ignoring safety improvement notices or of poor workplace safety policy messages',[59] the primary judge concluded that the fine of $30,000 was not outside the range of an appropriate sentencing disposition.[60]

1. The three grounds of appeal to this court are outlined at [6] above.
2. The parties accepted that the decisive issue for this court is raised by ground 3, that is, whether the fine imposed by the learned magistrate was manifestly inadequate.[61] Whether the fine was manifestly inadequate is a question this court determines for itself according to the correctness standard. In this respect, the position is analogous to an appeal concerning whether an administrative decision was legally unreasonable.[62] Consequently, whether the primary judge erred in the specific respects alleged by grounds 1 and 2 is of no moment.

1. The general principles applicable to an allegation that a sentence is manifestly inadequate are well‑established. Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An allegation of manifest inadequacy is an example of implied error, that is, where the end result is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
2. In order to determine whether a sentence is manifestly inadequate, the offence should be viewed in light of the maximum sentence prescribed by law, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of offences of that type and the offender's personal circumstances.
3. The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of a sentencing discretion. Sentences customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is no single correct sentence. What is important are the unifying principles that sentences imposed in comparable cases reveal and reflect.

1. Senior counsel for the appellant submitted that the respondent's failure to comply with the duty imposed upon it by s 21(2) of the OSH Act was a serious breach, having regard to the following:[63]

(1) The obvious hazard and potential for various serious harm to be caused by a reversing front‑end loader in circumstances where other persons, including members of the public, were nearby.

(2) The hazardous activity in question took place on a regular basis in an area frequented by the public and other employees of the respondent.

(3) The respondent knew of, or understood, the risk of harm arising from the operation of the front‑end loader in the facility, but failed to ensure proper training, supervision and management of its staff.

(4) The respondent failed to take the reasonable practicable measures identified in the statement of agreed facts (and repeated at [22] in these reasons).

(5) The serious injuries suffered by Mr Booth and their consequences.

1. Further, senior counsel for the appellant submitted that general and specific deterrence were important sentencing considerations in offences of the type committed by the respondent. Consequently, matters personal to the respondent, while not irrelevant, were of less importance.[64] Senior counsel for the appellant acknowledged that the appellant was a first offender, and observed that the maximum penalty of a fine of $400,000 was reserved for first offenders.[65]
2. Senior counsel for the respondent submitted that the fine that was imposed by the magistrate was not unreasonable or plainly unjust.[66]
3. Senior counsel for the respondent noted that Magistrate Lemmon's sentencing remarks were detailed, comprehensive and considered all relevant matters. Senior counsel for the respondent emphasised that, despite the width and extent of the activities undertaken by the respondent, it had not previously been convicted of any offence under the OSH Act.[67] Senior counsel for the respondent submitted that the respondent was entitled to very substantial credit for its prior good record and pleas of guilty. Emphasis was given to Mr Woodenberg's alleged failures and that, while there had been incidents in 2006 and 2012, long periods had elapsed where no incident had occurred at all.[68]

1. The statutory duty imposed upon an employer by s 21(2) of the OSH Act, consistently with the objects set out in s 5, is intended to protect the safety and health of a person from the hazards of work being undertaken by or on behalf of their employer.[69] This duty expressly extends to persons who are not employees of the employer, such as, in this case, Mr Booth.
2. The primary factor in determining the appropriate penalty is the objective seriousness of the offence. To a substantial extent, the seriousness of a breach must be assessed by reference to the foreseeable potential consequences and the measure of disregard concerning the safety of persons to whom the employer has a duty to protect in all of the circumstances of the case.[70] Particularly in cases involving a serious breach of the Act, personal mitigating factors, such as a plea of guilty, cooperation with the investigation and subsequent measures taken to improve safety must play a subsidiary role, as against the gravity of the offence, in determining the appropriate penalty.[71]
3. The conduct in question is the failure, so far as is 'practicable', to ensure that the safety or health of a non-employee is not adversely affected in the manner provided for in s 21(2) of the OSH Act. The conduct will be more serious where the severity of the potential injury or harm is serious. So too the degree of risk of such potential injury or harm occurring is relevant in assessing the seriousness of the contravening conduct. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken. The offender's state of knowledge about these matters should also be taken into account in assessing the seriousness of the offence. It is relevant to consider what the respondent's responsible officers knew or ought to have known.
4. The seriousness of the present case must be objectively assessed having regard to the obvious potential risk of serious injury that the respondent's breach of its statutory duty posed to those in the vicinity of the reversing front‑end loader. This assessment must account for the fact that, to the respondent's knowledge, it was unsafe to operate the machine when members of the public were present, and that the respondent could have easily taken measures to substantially eliminate the risk of injury. Thus, the risk was both obvious and known to the respondent. The respondent also knew of steps it could and should take to avoid the risk. The 2005 directive, the JSA in 2008 and the recommendations following the incidents in 2006 and 2012 all clearly identified the risks and the steps to be taken to eliminate or substantially reduce the risk. It is beside the point that a lengthy period of time had elapsed, without any accident, between the incidents in 2006, 2012 and 2014, given the potentially serious consequences of any breach of duty. In circumstances where the respondent knew, over many years, of the risks of serious injury and the means of avoiding those risks, its failure to take reasonably practicable steps to avoid those risks reflects a substantial measure of disregard towards the safety of members of the public who use the waste facility.
5. Moreover, the harm to which this hazard potentially gave rise was very serious - reversing a large vehicle without adequate visibility in a place where members of the public (or employees) may be was liable to cause serious injury or potentially even death. This feature of the respondent's offence is relevant to its location on the scale of seriousness of offences of this kind. The potential to which some offences under s 21(2) give rise is considerably less severe than the potential harm arising from the respondent's offence.
6. It is also relevant that those endangered by the respondent's failure to take reasonably practicable precautions included members of the public who were, in effect, invited by the respondent to attend and use the waste facility. Being unfamiliar with the facility, members of the public are vulnerable to unexpected movement of vehicles at the facility. It was to be expected that many of the ratepayers using the facility would be unaware of or at the least not fully cognisant of the importance of the sort of work practices and personal safety requirements that ought to be observed in such a facility. Many of those whose safety and health were at risk of being adversely affected as a result of the work being undertaken at the facility, and the hazard that arose from that work, would be infrequent visitors to such work sites and in any case lack sufficient training or experience to identify and protect themselves against the relevant risks. There was an increased risk of potential severe injury or harm to health to non-employees attending the facility having regard to the nature of the facility and the fact that it would be attended by members of the general public.
7. The amount of the fine must also reflect that the obvious potential risk of serious injury was in fact realised in this case. As a consequence of his serious injuries, Mr Booth has been left with long‑term, if not permanent, physical and psychological injuries which have adversely affected his livelihood and wellbeing.
8. The respondent's submissions emphasised its clean record over many years. The significance of that record must be evaluated in light of the fact that the maximum penalty of $400,000 applied only to an offender which had not committed any offence against any provision of the Act; see [12] above. Thus the respondent's good record is of little weight in locating this offence on the scale of seriousness of offences of this kind.
9. The respondent's submissions in the courts below and in this court seek to downplay its culpability in this offence by pointing to Mr Woodenberg's failures, as supervisor of the facility, to himself follow the directives and other safety procedures that the respondent had in place. Having regard to all of the circumstances of this case, this was not a matter of any substantial mitigation. This submission in truth seeks to deflect attention from the fact that the duty cast by s 21(2) of the OSH is on the respondent who, after all, acts through its officers and employees. The evidence did not reveal that Mr Woodenberg had, only on the day of the incident, failed to comply with the safety procedures adopted by the respondent. To the contrary, the respondent admitted, in substance, to an ongoing and serious failure of supervision and enforcement of its own procedures at the facility and, in particular, to a failure to address any inadequacies in Mr Woodenberg's compliance with those procedures.[72] This ongoing failure increased the risk of serious injury or death and the objective seriousness of the offending. Moreover, it reduced the mitigation that flowed from the respondent's otherwise good safety record.
10. There was no evidence before the sentencing magistrate which showed that the respondent's managers systematically monitored compliance with the 2005 directive, the 2008 JSA or the recommendations made after the 2006 and 2012 incidents at the facility. In order to discharge its statutory duty under the OSH Act, the respondent was required to ensure not only that it had systems in place which, as far as practicable, were designed to ensure the health and safety of persons who attended the facility, but, so far as reasonably practicable, to ensure that those systems were being implemented and maintained in its daily operations. The court must have regard not merely to the system as it existed in theory, but as it was being implemented in practice.[73]
11. The maximum penalty for a first offence for a contravention of the duty in s 21(2) of the OSH Act in circumstances which do not amount to gross negligence was, at the relevant time, a fine of $400,000.[74] The maximum penalty serves as an indication of the relative seriousness of the offence.[75] It is one of the many factors that bear on the ultimate determination of the sentence for an offence.[76] The maximum penalty, taken and balanced with all the other relevant factors, provides a yardstick against which to measure an appropriate sentence.[77]
12. Attention should be directed to where the facts of the particular offence and offender lie on the spectrum that extends from the least serious instances of the offence to the worst category, being those offences so grave as to warrant the maximum prescribed penalty.[78]
13. Many offences under s 21(2) will not exhibit all or any of the serious features of this case to which we have already referred. For example, in other cases, the risk of harm may be less obvious and not known to the employer, and the potential harm may be significantly less severe than the harm risked by the respondent's offending conduct. Also, other cases may not involve so many previous incidents by which the employer is made aware of the risks and the steps to be taken to avoid the risks as occurred in the present case.
14. The sentence imposed in the present case was a mere 7.5% of the maximum penalty.
15. While there is no tariff for offending against the OSH Act,[79] comparable cases are, potentially, another yardstick against which a sentence may be measured. Neither the appellant nor the respondent drew the court's attention to any relevant sentencing cases decided by this court. Our own inquiries did not reveal any comparable cases. In an appendix to the appellant's written submissions, reference was made to a large number of single judge decisions.[80] However, the appellant did not suggest that the outcomes in those cases provided any real assistance in the present case. The absence of comparable cases is not a barrier to this court deciding that the sentence in question was manifestly inadequate.[81]
16. Mitigating factors such as the respondent's plea of guilty, its prior good record and the remedial measures which it took after the incident must not be ignored. However, they cannot be allowed to result in the imposition of a fine which fails to reflect what, in our opinion, was a serious breach of duty, pursuant to s 21(2) of the OSH Act (rather than an offence at the mid to lower level on the scale of seriousness as characterised by the sentencing magistrate). The mitigating factors in this case cannot lead to the imposition of a manifestly inadequate penalty.[82]
17. Having regard to all of the relevant circumstances, particularly the objective seriousness of the offending, the need to properly punish and to provide general deterrence, and having regard to all of the mitigating factors, we have concluded that the fine imposed by the sentencing magistrate and upheld by the primary judge was more than merely lenient, it was manifestly inadequate, that is, it was unreasonable or plainly unjust. In all the circumstances, evaluated against the yardstick of the maximum penalty of $400,000, locating the offence on the spectrum of offences that extends from the least serious instances of the offence to the worst category, in our respectful opinion it must be concluded that the sentence reveals implied error. With respect to the sentencing magistrate and the primary judge, the fine imposed was not within the exercise of a sound sentencing discretion. Implied error has been established. Ground 3 has been made out.

1. Insofar as grounds 1 and 2 are concerned, little needs to be said. For the reasons at [43] above, neither ground adds anything of substance to ground 3. It is not necessary to decide whether the primary judge characterised the respondent's offending behaviour as a 'vicarious failure to effectively enforce its safety directives', and if so whether that revealed error. While this court must decide ground 3 on the statement of agreed facts as presented to the sentencing magistrate, in determining whether the fine was manifestly inadequate it is required to independently assess the objective seriousness of the offence based on those facts. This court is not bound to defer to or adopt the characterisation of those facts, or the seriousness of the offence, as adopted by either the sentencing magistrate or the primary judge. A similar approach is to be taken in respect of ground 2, which alleges that the primary judge erred in his assessment of the mitigating value of the respondent's 'clean record' and in his comment that the respondent had an 'impressive work safety history'. This court is not bound to defer to or adopt the primary judge's assessment of those factors. For these reasons, it is not necessary to determine grounds 1 or 2.

1. This court has all of the materials necessary to resentence the respondent.
2. We will not repeat what we have already written concerning the maximum penalty, the seriousness of the offending and the mitigating factors. General deterrence with the aim of protecting the public from the risk of serious injury resulting from obvious and easily remedied hazards is the paramount sentencing consideration. In our opinion, a fine of $110,000 is the appropriate penalty, having regard to all of the relevant circumstances, including the mitigating factors.
3. The orders that we would make are as follows:

(2) The decision of Kenneth Martin J dismissing the appeal and ordering the appellant to pay the respondent's costs in SJA 1067 of 2018 is set aside and in substitution the orders in (3) are made.

(b) The fine imposed by Magistrate Lemmon on 19 April 2018 in respect of AR 9210 of 2017 of $30,000 is set aside and, in lieu thereof, the respondent is fined $110,000.

1. On the face of it, costs should be dealt with as the appellant seeks, namely, the respondent pay the appellant's costs of the proceedings before the primary judge and this court, to be assessed if not agreed. We would hear from the respondent if it wishes to oppose orders in those terms.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[7] OSH Act, s 3A(3)(b)(i), current at 10 August 2014. Whether the offence was a 'first offence' requires consideration of whether, at the time the offence was committed, the offender had previously been convicted of any offence against the Act, not just an offence of the type under consideration: OSH Act, s 3B(2)(a).

[9] The complete statement is contained at BGAB 205 - 212. See also sentencing ts 4 - 13.

[31] The sentencing magistrate said the colostomy bag was removed 'by at least April 2016': sentencing ts 4. In the sentencing proceedings, counsel who then appeared for the appellant accepted that, in December 2014, Mr Booth underwent a colostomy stoma closure: trial ts 88 - 89.

[62] As to which, see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713).

[70] DPP v Amcor Packaging Pty Ltd [2005] VSCA 219; (2005) 11 VR 557 [35].

[71] DPP v Amcor [35]; quoting WorkCover Authority of New South Wales v Profal Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700 [31].

[73] WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction and Materials Ltd [No 2] [2000] NSWIR Comm 99 [35].

[74] OSH Act, s 3A(3)(b)(i), current at 10 August 2014.

[75] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31].

[76] Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 [27].

[77] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].

[78]Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452; The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19]; Gaskell v The State of Western Australia [2018] WASCA 8 [144].

[79] Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194 (S) [16]. While the convictions which were affirmed in this case were set aside by the Court of Appeal in Kirwin v Laing O'Rourke (BMC) Pty Ltd [2011] WASCA 117, the Court of Appeal did not suggest that the primary judge's statements of sentencing principle were incorrect.

[81] See Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [53].

[82] Munda v The State of Western Australia [39]; DPP v Amcor [35].