Occupational health and safety - Fatal accident - Whether breach of duty caused death

Mines Safety and Inspection Act 1994 (WA), s 9

1 Among other things, the appellant operates a locomotive overhaul workshop at Point Nelson in Port Hedland. The workshop, as its name suggests, is for the repair and overhaul of locomotives used to haul ore carriages from the appellant's mining activities to Port Hedland. It is regarded as being part of a mine.

2 In order to gain access to the tops of locomotives, the appellant had two scissor lifts installed on either side of road 9. When they were mobile the lifts had been used by the appellant in the ore car workshop. They were to be disposed of when purposebuilt structures were erected in their place. However, they were overhauled and put to use in the locomotive workshop.

3 In November 2006, each scissor lift was altered by the addition of hydraulically operated retractable platforms that extended out from the existing lift providing additional edge protection by eliminating a gap between the lift and locomotive. By early 2008, neither scissor lift was functioning correctly. It was decided that Mr McLaughlin would carry out remedial work. Mr McLaughlin was 52 years old and had been working for the appellant as an engineering tradesperson/mechanical fitter since August 1985. He was a very experienced capable fitter. He began working on the lifts, sometimes with assistance, in May 2008 and, by 19 July 2008, had finished work on the southern side scissor lift and then began work on the northern side scissor lift.

4 It is necessary to say something more about a scissor lift. A scissor lift consists of two sets of arms connected between a base and a platform. The platform is raised with a hydraulically powered ram. An electronic motor powers a pump which forces hydraulic fluid into the ram to extend it and raise the lift. To lower the lift, fluid is allowed to run back into an associated reservoir and the ram is retracted. The scissor lift is fitted with a permanently attached safety bar. Once the lift is raised, the safety bar can be lifted into a vertical position and fitted into a bracket welded onto the lift. A pin is inserted through a hole in the bracket into holes in the safety bar. Once the safety bar is in place, the scissor lift cannot descend. It is a simple, if awkward, and effective measure to prevent the obvious safety hazard if a scissor lift descends while a person is underneath it.

5 Mr McLaughlin was very experienced in the use of the safety bar. He was seen using the safety bar on the morning of the accident, 29 July 2008.

6 The work on that day involved fitting a tee piece to an oil line associated with the ram. Mr McLaughlin connected a ball valve to the tee with a quick connector. This enabled an external pump, as distinct from the scissor lift pump, earlier described, to be used to raise the lift.

7 If the fitted pump was used, the ball valve would be closed. If the external lift was used, the ball valve would be open enabling fluid to be pumped from the external pump into the ram. Upon lowering, the fluid would flow back into the reservoir on the external pump. The onboard controls would not be used for raising the lift when the external pump was being used. That day a pump described as the SPX pump was being used as the external pump.

8 At some time around 11.00 am, Mr McLaughlin's body was discovered trapped beneath the scissor lift which had descended onto him. The safety bar was not in place. Mr McLaughlin was dead.

9 In due course, the appellant was prosecuted under the Mines Safety and Inspection Act 1994 (WA) s 9 and convicted. It appeals against that conviction to this court.

The Mines Safety and Inspection Act 1994

10 It was common ground that the Mines Safety and Inspection Act applied to the locomotive overhaul workshop. Section 9 relevantly provides:

(1) An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must -

(a) provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer's employees are not exposed to hazards; and

(b) provide such information, instructions and training to and supervision of employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and

(d) where it is not practicable to avoid the presence of hazards at the mine, provide employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and

(e) make arrangements for ensuring, so far as is practicable, that -

(i) the use, cleaning, maintenance, transportation, and disposal of plant; and

(ii) the use, handling, processing, storage, transportation, and disposal of substances,

at the mine is carried out in such a manner that that employer's employees are not exposed to hazards.

(2) In determining the training required to be provided in accordance with subsection (1)(b), regard must be had to the functions performed by employees and the capacities in which they are employed.

11 The Mines Safety and Inspection Act defines 'practicable' to mean:

reasonably practicable having regard, where the context permits, to -

(a) the severity of any potential injury or harm to health that may be involved and the degree of risk of such injury or harm occurring; and

(b) the state of knowledge about -

(i) the injury or harm to health referred to in paragraph (a); and

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the potential injury or harm to health;

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii).

12 The term 'reasonably practicable' is not a term of art: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 [53]:

The words 'reasonably practicable' have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words 'reasonably practicable' are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

• the phrase 'reasonably practicable' means something narrower than 'physically possible' or 'feasible';
• what is 'reasonably practicable' is to be judged on the basis of what was known at the relevant time;
• to determine what is 'reasonably practicable' it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk. (footnotes omitted)

13 The Mines Safety and Inspection Act defines 'risk':

in relation to any injury or harm, means the probability of that injury or harm occurring.

14 Foreseeability is relevant to the assessment of risk: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 [34]:

The word 'risk' appears in the definition of 'practicable' in pars (a) and (b)(ii) and (iii). In s 3 of the Act 'risk' is defined to mean the 'probability' of the relevant injury or harm occurring, which means no more than the 'likelihood' of the injury or harm occurring: Hamersley Iron Pty Ltd v Robertson (18). This will require some consideration of the question of foreseeability: Chugg v Pacific Dunlop Ltd (265); Hamersley Iron Pty Ltd v Robertson (18). That, in turn, involves consideration of whether it is shown that the employer knew, or that a reasonable employer in the position of the employer would have appreciated or foreseen the risk of the injury or harm to health occurring: Wylie v South Metropolitan College of TAFE [45]; Reilly v Devcon [60]; Silent Vector Pty Ltd v Shepherd [11] [12].

15 It was not in issue that there was a distinct risk of injury to any person working under a scissor lift.

16 The provisions of s 9(1) do not create an offence. They create duties. It is a contravention of one or more of these duties that establishes an offence created by s 9A.

17 Penalties are provided by s 9A:

(1) If an employer contravenes section 9(1) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.

(2) If -

(i) contravenes section 9(1); and

(ii) by the contravention causes the death of, or serious harm to, an employee;

the employer commits an offence and is liable to a level 3 penalty.

(a) an employer contravenes section 9(1); and

(b) neither subsection (1) nor subsection (2) applies,

the employer commits an offence and is liable to a level 2 penalty.

(4) An employer charged with an offence under -

(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or

(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

18 In order to establish a penalty level above Level 2, the prosecution is required to prove an element set out in s 9A(1) or s 9A(2).

On the 29th day of July, 2008 ...

Being an employer at a mine failed so far as practicable to provide and maintain at a mine a working environment in which that employer's employees were not exposed to hazards and by that contravention caused the death of Andrew Terence McLaughlin, contrary to sections 9(1) and 9A(2) of the Mines Safety and Inspection Act 1994.

20 The prosecution particularised the charge as follows:

The particulars allege that the 'hazard' was the risk of injury or death as a result of becoming caught between moving parts of the scissor lift hoist.

The failures alleged of the Accused were:

(a) a failure to ensure that any external hydraulic pump connected to the hydraulic system of the scissor lift hoist had a nonreturn valve and a controlled lowering system.

(b) a failure to ensure that any manually operated hydraulic device used to control the flow of oil to and from the lift ram circuit of the scissor lift hoist was fitted outside of the descent path of the scissor lift hoist platform.

(c) a failure to provide and maintain a system of work in respect of the use of any hydraulic pump or hydraulic device to ensure they were operated away from the descent path of the scissor lift hoist platform.

(d) a failure to implement and enforce suitable Job Safety (Hazard) Analysis procedures in respect of the repair and modification of the scissor lift hoist.

(e) a failure to provide instructions to and supervision of its employees, (including Mr McLaughlin) so that they were not exposed to a hazard.

21 The trial took place in the South Hedland Magistrate's Court over nine days. It was not in contention that a scissor lift presented a well known and understood hazard in the form of a crush injury to anybody caught in the descent path. It was not in contention that it was reasonably practicable for the appellant to have instituted measures which would remove or mitigate the hazard.

22 In essence the appellant maintained that it had provided a measure to remove the hazard in the form of a safety bar. Mr McLaughlin knew of it and had repeatedly demonstrated his use of it. Any failure to enforce a Job Hazards Analysis, known as a JHA, regime did not cause death.

23 On 13 January 2013 the magistrate published comprehensive reasons for his decision to find the appellant guilty. The appellant has numbered the paragraphs and I refer to those numbers. The magistrate did not find every particular to the charge was proved.

1. the hydraulic equipment to be worked on by Mr McLaughlin was within the descent path of the scissor lift;
2. the lift presented a well known and understood hazard of serious injury or death from a crush injury;
3. the safety bar was the built in and appropriate means to secure the lift if you had to go within the descent path;

1. What happened to lead Mr McLaughlin to be crushed by the scissor lift?
2. If it is not possible to determine what happened, was it nevertheless foreseeable that, in the circumstances, Mr McLaughlin was exposed to risk of death or injury by a crush injury?
3. Was that exposure due to any or all of the failures alleged by the Prosecution and caused Mr McLaughlin's death?

25 There was nothing in Mr McLaughlin's demeanour to give any cause for concern and nor were alcohol or drugs any factor.

1. In my judgment it was reasonably practicable for the Accused to have provided a pump with a nonreturn valve and controlled lowering system.
2. I concluded that the SPX pump (and, in fact, no external pump) was electrically or hydraulically connected at the time of the incident. Accordingly there is nothing specific to link what happened to Mr McLaughlin with the failure of the Accused to provide a pump with a non-return valve and controlled lowering system.

27 It follows that the prosecution did not establish particular (a).

Particular (b) - A manually operated hydraulic device fitted within the descent path.

1. [It] was reasonably practicable for the Accused to have ensured that the manually operated hydraulic device ie. the ball valve, was fitted outside of the descent path of the lift.

1. It follows from this that while the fitting of the ball valve within the descent path would have meant that Mr McLaughlin did not have to go within the descent path of the lift to activate it, the positioning did not, in and of itself, produce the exposure to the hazard of becoming caught between moving parts of the scissor lift.

30 Accordingly this particular was not established.

31 The magistrate held that these matters are more appropriately looked at when considering issues such as the JHA procedures and supervision [264]. He regarded the particular as far too general and the failures are more appropriate and specifically addressed in the final two particulars.

32 The particulars which the magistrate did find proved were (d) and (e).

33 Before embarking on an analysis of the grounds of appeal it is worthwhile remembering, trite though it may be, that the onus is on the prosecution to prove its case beyond reasonable doubt. If there is a reasonable hypothesis consistent with innocence then the appropriate verdict is one of not guilty. A causal nexus between breach of a duty imposed on the appellant under s 9 and the death of the employee Mr McLaughlin must be proved beyond reasonable doubt before the provisions of s 9A(2) are engaged.

34 A general discussion of the principles I apply is conveniently found in Kirkby v A & M I Hansen Pty Ltd (1994) 55 IR 40, 49 50 (Hungerford J).

(a) 'the only safe method of work was the use of the safety bar' (Reasons, page 30) [Magistrate's Reasons 236];

(b) 'Mr McLaughlin was clearly aware [that the only safe method of work was the use of the safety bar]' (Reasons, page 30); and [Magistrate's Reasons 236]

(c) 'insertion of the safety bar is the only acceptable control for working within the descent path' (Reasons, page 44) [Magistrate's Reasons 349],

the Learned Magistrate erred in fact and law in finding that 'having the safety bar in place was not the only potential control to avoid or minimise the hazard' [of risk of injury or death as a result of becoming caught between moving parts of the scissor lift] (Reasons, page 49) [Magistrate's Reasons 395].

(a) the only reasonably practicable safe system of work to control the hazard of risk of injury or death as a result of becoming caught between moving parts of the scissor lift was the use of the safety bar;

(b) that that system of work was provided to Mr McLaughlin by the appellant; and

(c) that that system of work was known to, and utilised by, Mr McLaughlin.

36 The magistrate made repeated findings, which were open on the evidence, to the effect that the only safe method of work was the use of the safety bar. The evidence in this respect was compelling. He found:

1. In my judgment there can be no doubting that a scissor lift is a dangerous piece of equipment. ... To be caught in the descent path is likely to result in serious injury or death and that is precisely why the overarching instruction was to not go into the descent path of the lift if it was raised and if the safety bar was not in place.
2. [T]he only safe method of work was the use of the safety bar and Mr McLaughlin was clearly aware of this.
3. Even with a pump with a non-return valve and controlled lowering system the fundamental rule is [that a worker does not go into the descent path without a safety bar in place].
4. [In] the event of an unexpected hydraulic failure the complete answer was the mechanical device of the safety bar.
5. The insertion of the safety bar is the only acceptable control for working within the descent path but it comes with its limitations.

1. In my judgment it can be envisaged that situations will arise where the platform is elevated and the safety bar is not in place.

38 The effect of the magistrate's findings is that the direct cause of death was the descent of the scissor lift platform (for whatever reason) because the safety bar was not put in place. Mr McLaughlin was an experienced and conscientious fitter who not only knew of the hazard but had taken active steps to use the safety bar, including twice on the morning of the accident.

39 Having made those findings, the magistrate then made findings about the use of a JHA and lack of supervision concluding:

1. I accept that causation needs to be addressed in a common sense way.
2. In my judgment the failures to implement and enforce suitable JHA's and the failure to provide supervision to Mr McLaughlin were the cause of his death.
3. I do not with respect agree with the Prosecution submissions that causation is associated with the fitting of the ball valve in the descent path or the use of an external pump which did not have a nonreturn valve and lowering system.
4. What Mr McLaughlin did was dangerous. He put his body into the descent path of the scissor lift when the safety bar was not in place.
5. However I conclude he did that because he had not, through the process of JHA's and associated supervision, addressed the hazards and the controls associated with what he was doing.
6. As a result of the consultation process with Vector Lifting not being properly formalised or implemented Mr McLaughlin was on his own with repairing the scissor lifts and he was experiencing significant difficulty.
7. As a result of not doing Take 5's and JHA's he was not and had not addressed the hazards and controls associated with the work that he had done. The lack of supervision which would have reinforced the need to address the hazards and provided additional perspective on the question of controls contributed to this situation.
8. This left Mr McLaughlin being exposed to the hazard of being killed as a result of being caught between the moving parts of the scissor lift.
9. Having the safety bar in place was not the only potential control to avoid or minimise the hazard.
10. Having:

- having extra precautions like chains, or specially designed frames, chocks;

º from the roadside and not from the platform side or

were all matters mentioned at various times in the evidence and could have been the material included in appropriate JHA's.

1. Whatever would have been decided upon is necessarily conjectural but the fundamental need to assess the hazard and implement the control would have needed to have been addressed repeatedly as the repair of the scissor lift proceeded.

1. I conclude the charge has been proved beyond a reasonable doubt and that it is appropriate to convict the Accused.

40 The appellant submits that in these passages the magistrate did not identify how additional supervision and instruction or a JHA, would have identified anything other than the use of the safety bar. I uphold this submission.

41 The finding at [397] suggests, with respect, that the magistrate did not conclude that a JHA would have prevented the death. Put differently the conjecture referred to by the magistrate as to the method that might have been set out in the JHA leaves open the reasonable possibility that no method might have been sufficient. The issue was not as stated [395] but whether the failure caused the death.

42 The magistrate's findings I have set out are sufficient to establish a breach of the duties required under s 9 of the Mines Safety and Inspection Act but do not establish beyond reasonable doubt the nexus between breach and cause of death sufficient to engage the penalty level in s 9A(2).

43 Although the respondent submits that the appellant has taken some of the magistrate's finding about the safety bar out of context, I am unable to accept these submissions. The magistrate made positive findings, fully supported by the evidence.

44 It is the case that the magistrate delineated the limitations of the use of a safety bar:

1. [It] is quite heavy and you have to line up the platform with the holes on the safety bar to insert the pin. It is also the case that you cannot use the safety bar if you are testing the machine's ability to go up and down. A further limitation is that while it is, realistically, a two man operation to insert the safety bar, it is possible, where the platform is not resting on the pin, to remove the pin and remove the safety bar by oneself.

45 Although the magistrate envisaged situations where the platform is elevated and the safety bar is not in place, it is difficult to think of any situation that would require a person to be working under the platform without a safety bar. As the magistrate noted, the safety bar is necessary in the case of an unexpected pump failure whatever the cause.

46 Within the meaning of the Mines Safety and Inspection Act s 9(1) the appellant had provided a piece of equipment, the safety bar, that would have not exposed Mr McLaughlin to the hazard of the lift descending while he was underneath it. Regardless of the absence of a JHA or adequate supervision, the evidence abundantly established that Mr McLaughlin was aware of the safety bar, and had used it frequently. Obviously he did not use it on the final occasion.

47 Read as a whole, the magistrate's reasons concluded that the safety bar was the only effective way to eliminate the hazard. Mr McLaughlin, a careful and conscientious employee, knew this and frequently demonstrated his knowledge.

48 While there was no proper JHA performed and supervision was inadequate, there is insufficient evidence, based on the magistrate's factual findings, to establish that causal link with death beyond reasonable doubt. To establish a causal link between the death and the lack of a JHA and inadequate supervision, more than conjecture was required as to material that could have been included in a JHA.

49 The prosecution had to establish beyond reasonable doubt that a JHA or adequate supervision would have prevented the death, that the lack of a JHA or adequate supervision made a substantial contribution to the death.

50 In view of the findings at [236] and [239], this could not be established. The only safe method of preventing death, as Mr McLaughlin knew, was to use the safety bar.

52 In a sense resolution of ground (2) is unnecessary because the issue whether the ball valve was open or closed does not determine whether the appellant breached the duties in Mines Safety and Inspection Act s 9.

(2) The Learned Magistrate erred in fact in finding that Mr McLaughlin intentionally opened the ball valve on the scissor lift immediately prior to his death.

Particulars

(a) the Learned Magistrate concluded, correctly, that the evidence did not enable a finding to be made as to what task or process Mr McLaughlin was undertaking immediately prior to being trapped (Reasons, page 23) [Magistrate's Reasons 188];

(b) there was no direct evidence that the ball valve was open at the time of Mr McLaughlin's death;

(c) there was direct evidence that the ball valve was closed at the time of Mr McLaughlin's death, in relation to which:

(i) the Learned Magistrate failed to give weight, or sufficient weight, to the direct evidence (of Mr Lyall) that the ball valve was closed following Mr McLaughlin's death (Reasons, page 25) [Magistrate's Reasons 198];

(ii) the Learned Magistrate failed to give weight, or sufficient weight, to the direct evidence (of Mr Henderson) that the hose associated with the ball valve was closed to the atmosphere following Mr McLaughlin's death (Reasons, page 25) [Magistrate's Reasons 202];

(iii) the Learned Magistrate failed to give weight to the direct evidence of the other witnesses (including Messrs Hislop, Lyall, Smith, Price, Singh and Musgrove) that the fitting on the hose associated with the ball valve was not altered prior to the photographs taken by police of the scene - which photographs depicted the hose associated with the ball valve to be closed to the atmosphere;

(d) the Learned Magistrate's conclusion that Mr McLaughlin intentionally opened the ball valve on the scissor lift was based on circumstantial evidence only, namely:

(i) the position of Mr McLaughlin's body being 'strongly suggestive' that he was reaching in and under the scissor lift (Reasons, page 24) [Magistrate's Reasons 191]; and

(ii) his Honour's conclusion that it was 'unlikely' that Mr McLaughlin could have been knocked into the position in which he was found (Reasons, page 24) [Magistrate's Reasons 194]; and

(e) having regard to all of the evidence, the circumstantial evidence could not exclude the reasonable hypothesis that Mr McLaughlin did not open the ball valve, such that the Learned Magistrate could not be satisfied beyond reasonable doubt that Mr McLaughlin had done so.

53 The magistrate's findings in respect of the ball valve are:

1. I conclude that Mr McLaughlin did operate the ball valve, that hydraulic fluid flowed out of the associated hose and the lift descended on to him.

I come to that conclusion for the following reasons;

1. the position in which Mr McLaughlin's body was found is strongly suggestive that he was reaching in and under the scissor lift platform. It is not possible for me to determine what, if any, movements Mr McLaughlin made when, and if, he became aware the lift was descending on to him. However, whether he made some, or no, efforts to extricate himself because, he was unaware the lift was descending, didn't react quick enough or did react, but was caught by the protruding safety bar bracket, it remains the situation that he was within the descent path.
2. while I accept that the ball valve could, as Mr Lyall did, be operated from the other side of the lift to where Mr McLaughlin was found, nevertheless he could get to the valve from where he was found.
3. I have contemplated the theory that the position of the body may have misled enquirers into thinking Mr McLaughlin was reaching under the lift but I came across the following difficulties;
4. there was no medical evidence arising from the post mortem that suggested any preexisting conditions or blow from a descending lift. Accordingly there was no evidence that could suggest or point to Mr McLaughlin having collapsed into or having been knocked into the position that he was found;
5. there were no defects in the lift in terms of the solenoid valve or pipe ruptures that were consistent with it losing hydraulic power suddenly and the on board controls were not being used. Accordingly the only way the lift could descend (accepting the on board controls were not used) was through the use of the emergency relief valve or by operating the ball valve only to find that hydraulic fluid escaped from the attached hose and the lift descended.
6. if Mr McLaughlin deliberately activated the emergency relief valve it is reasonable to assume he would be expecting the lift to descend and I find it unlikely (and there is no medical evidence supportive of) the theory that he could then have been knocked into the position that he was found.
7. I accept that, having concluded that the SPX pump was not being used, that it seems strange that Mr McLaughlin was operating the ball valve the essential purpose of which was to enable an external pump to be used to raise the platform.
8. I further accept that Mr Lyall believed the ball valve was in the off position which was consistent with the on board controls being used and not an external pump.

However I took into account the following considerations;

1. although the pump was not then connected Mr McLaughlin may have been switching the valve to the on position with a view to connecting up the SPX pump at a later stage. In ordinary circumstances the hose had self sealing connections and accordingly a significant amount of the hydraulic fluid would not normally escape;
2. it was a traumatic situation in which Mr Lyall was operating. He was aware of the proximity of Mr McLaughlin's body and the fact that his colleague had passed away and could be forgiven completely if he was mistaken as to whether the ball valve was in the off position;
3. if the ball valve was in the off position there was no opportunity for fluid to escape via an open fitting on the hose and otherwise no reason for the lift to descend.
4. I accept that the conclusion that the hose associated with the ball valve had a fitting that opened it to the atmosphere (ie. allowed hydraulic fluid to flow from it) may be seen to be contrary to the evidence of Mr Henderson and the enquiries of Mr Simms. However I took into account the following considerations;
5. like Mr Lyall, Mr Henderson was operating in a traumatic situation and remembering accurately what fittings were on, or had to be connected up, to the hose would be difficult.
6. With respect, I agree with the Prosecution final submissions that there was no logical reason for Mr McLaughlin to have fitted the adaptor to the quick release fitting nor to have then opened the ball valve.
7. Mr Simms, came on the scene as an investigator and is doing his best to reconstruct what happened. Whatever his speculations he concluded that the hose had a fitting on it, at the time of the incident, that enabled the release of hydraulic oil, which in turn caused the lift to descend.
8. In coming to my conclusions about the position of the ball valve and the hose fitting I was also influenced by Mr Simms evidence of the presence of oil, at least consistent with, if not definitive of, his theory that oil had escaped from the hose associated with the ball valve.
9. I concluded that the SPX pump was not being used for the following reasons;
10. I have no reason, notwithstanding how clearly traumatic the situation was, for witnesses to be completely mistaken about having to connect up the pump both hydraulically and electrically, particularly bearing in mind they were asked to recall the situation by Mr Farnsworth a short time after the incident. Making an error about a valve position or hose fitting is one thing but mistaking a whole process of finding an electrical outlet to provide power to the pump is quite another;
11. Although less influential, the evidence was that the rate of descent with the SPX pump attached was the slowest of three scenarios. It therefore is the least consistent with Mr McLaughlin being caught by surprise.
12. I accept that there is no other evidence apart from Mr O'Reilly and Mr Torralba as to the height of the lift a short time prior to Mr McLaughlin being found. Their evidence would indicate that the lift was between 70 per cent and fully extended. This evidence is not easily reconciled with two aspects of the evidence.
13. Firstly, the more extended the lift was the longer the descent time would be. This is relevant to the fact that it appears Mr McLaughlin was caught by surprise by the descent of the lift and didn't have time to extricate himself. This is of course consistent with the lift being significantly lower than 70 per cent and some of the testing placed the lift a short distance above the equivalent of an adult torso. It still took 2.5 seconds for the lift to descend from this point.
14. Secondly, the position in which Mr McLaughlin was found is suggestive of, and Mr Simms concluded it was the case, that Mr McLaughlin was kneeling and reaching in to access the ball valve. This would be more consistent with the lift being at a lower position than one where you are able to walk under the lift.
15. The times for descent produced by the testing are informative but not definitive because there was no evidence of when someone might become aware of an unexpected descent of the platform and how much time would be required to extricate yourself from the descent path.

54 The magistrate found the ball valve was open. Two witnesses, Mr Lyle and Mr Henderson, said it was closed. They were effectively the first persons on the scene. Although the magistrate discounted their observations on the basis that they were made under conditions of trauma, this basis was wrong. The witnesses were neither questioned, nor volunteered evidence, about the effect of trauma on the reliability of their observations or recollections. As there was no evidence, there was no basis for the drawing of an inference.

55 Mr Mitchell SC, who appeared for the respondent on the appeal, properly conceded the magistrate's reasoning in this respect was in error.

56 Evidence from Mr Simms and Mr Wenn suggested that the ball value was open.

57 Police photographs introduced into evidence show the ball valve in the closed position. The position of Mr McLaughlin's body suggests he may have been reaching under the scissor lift although no one can be sure.

58 But whether the ball valve was open or closed, the hazard was obvious. The hazard was in placing any part of a human body under the scissor lift, for whatever reason. The hazard could be obviated by use of the safety bar.

1. Once the Magistrate concluded that the SPX pump was not hydraulically connected to the scissor lift, the only reasonable explanation for the descent of the scissor lift was that the ball valve and hydraulic hose were both open.
2. The alternative hypothesis raised by defence counsel, that Mr McLaughlin opened the emergency relief valve, was not accepted as a reasonable explanation by either expert. Mr Wenn agreed that it was 'grossly unlikely' in the circumstances. The hypothesis did not rest on anything more than mere conjecture. The learned Magistrate correctly rejected the hypothesis.
3. Given that mechanical failure, on the operation of the lift from the onboard controls, were excluded, and that the position of the deceased was consistent with his having operated the ball valve, it was open to the Magistrate to be satisfied, beyond reasonable doubt, that the incident occurred in the manner which both experts had described.

60 The respondent's case is that the modification introduced a new way a hazard could arise.

61 The finding that Mr McLaughlin operated the ball valve is challenged by the appellant. The evidence of both Mr Lyle and Mr Henderson was to the effect that the ball valve was closed when they came on the scene. This is consistent with the first photographs taken by police.

62 The evidence from expert witnesses, Mr Simms and Mr Wenn, together with the presence of oil, supported the conclusion that the ball value was open. But in light of the evidence of Mr Lyle and Mr Henderson, the prosecution could not establish beyond reasonable doubt that the ball value was open. There is a reasonable possibility that the ball valve was closed. The prosecution could not establish beyond reasonable doubt that the ball valve was closed. Ground 2 is made out.

63 That said, the issue seems to be a degree tangential to the main issues in the trial and appeal.

64 The evidence accepted by the magistrate overwhelmingly established that Mr McLaughlin was killed when the scissor lift descended trapping him underneath. This was the direct cause of death.

65 Death would have been prevented if Mr McLaughlin had used the safety bar on this occasion as he had been observed to do many times previously and twice on this day.

66 Put in issue by the appeal is the finding that failure to undertake a JHA was an operative cause of death.

67 The answer to that question does not depend on a finding that Mr McLaughlin operated the ball valve or that the ball valve was open or closed. The position of the ball valve may provide an explanation why the scissor lift descended; and, further, why Mr McLaughlin was in its path. But it does not provide an answer to why the safety bar was not used. The hazard was not whether the scissor lift would descend if the ball valve was open. The hazard was the descent. A JHA may have identified another way for the hazard to arise - the open ball valve - but that is all. By his actions until the fatal occasion, Mr McLaughlin had demonstrated both that he was aware of the hazard created by a scissor lift descent and the only method to obviate the hazard, was the use of a safety bar.

68 The location of the ball valve and the work undertaken by Mr McLaughlin are relevant to the issue of the lack of a JHA but the position of the ball valve does not determine ultimate liability.

1. The Learned Magistrate erred in fact and law in finding that the appellant's failure to enforce the Job Hazard Analysis (JHA) procedure in respect to Mr McLaughlin exposed Mr McLaughlin to the hazard of the risk of injury or death as a result of becoming caught between moving parts of the scissor lift (the Hazard).

(a) the Learned Magistrate held, correctly, that 'the only safe method of work was the use of the safety bar and that Mr McLaughlin was clearly aware of this' (Reasons, page 30) [Magistrate's Reasons 236];

(b) the Learned Magistrate did not make any finding, beyond reasonable doubt, as to what action or control, other than the use of the safety bar, would have been identified on a JHA. In particular:

(i) the Learned Magistrate found that a JHA 'may well' have included other controls (Reasons, page 35) [Magistrate's Reasons 277];

(ii) the Learned Magistrate found that it was 'necessarily conjectural' as to what control would have been identified in a JHA (Reasons, page 49) [Magistrate's Reasons 397]; and

(c) in the circumstances, the Learned Magistrate could not be satisfied beyond reasonable doubt that a JHA would have identified any action or control in respect of the Hazard in addition to that in relation to which Mr McLaughlin was already aware.

1. The Learned Magistrate erred in fact and law in finding that it was reasonably practicable for the appellant to provide greater instruction and supervision of Mr McLaughlin to ensure Mr McLaughlin was not exposed to the hazard of the risk of injury or death as a result of becoming caught between moving parts of the scissor lift (the Hazard).

(a) the Learned Magistrate held, correctly, that 'the only safe method of work was the use of the safety bar and that Mr McLaughlin was clearly aware of this' (Reasons, page 30) [Magistrate's Reasons 236];

(b) the Learned Magistrate failed to give sufficient weight to the evidence that Mr McLaughlin was experienced in hydraulics, highly competent and known to be a safe worker in assessing the level of supervision required of him; and

(c) the Learned Magistrate, did not, and on the evidence before him could not, make any finding, beyond reasonable doubt, as to how greater instruction and supervision of Mr McLaughlin would have addressed the Hazard beyond that which was addressed by the system with which he was already aware.

1. Further, and in the alternative to ground 3, the Learned Magistrate erred in fact and law in finding that the appellant's failure to enforce the Job Hazard Analysis (JHA) procedure in respect to Mr McLaughlin caused Mr McLaughlin's death.

(b) the Learned Magistrate did not, and on the evidence before him could not, make any finding, beyond reasonable doubt:

(i) as to what action would have been identified on a JHA, which would have prevented Mr McLaughlin's death; and

(ii) that Mr McLaughlin would have in fact taken that action such that his death was prevented.

1. Further, and in the alternative to ground 4, the Learned Magistrate erred in fact and law in finding that the failure to provide adequate instruction and supervision of Mr McLaughlin caused Mr McLaughlin's death.

(b) the Learned Magistrate did not, and on the evidence before him could not, make any finding, beyond reasonable doubt:

(i) as to what instruction and supervision of Mr McLaughlin would have prevented Mr McLaughlin's death; and

(ii) that Mr McLaughlin would have in fact followed such instruction and supervision such that his death was prevented.

70 The magistrate made critical findings which are not challenged:

1. I respectfully agree with the Prosecution final submission that if operating manuals and safe work instructions are pointed to as instructive they were inadequate.

1. Mr Lynch agreed the Safe Work procedure in itself was inadequate for repair work on the scissor lift and that a JHA would be appropriate.

1. The management structure of the Accused for the purpose of this matter was headed by Mr Lynch.
2. Mr Lynch was aware at the time that Mr McLaughlin was working on the scissor lift. He thought Mr Price, as Mr McLaughlin's supervisor, would work with Mr McLaughlin around task allocation and then monitoring the jobs and to assist in getting the jobs done. Mr Lynch said this was nonstandard work and that a JHA should have been done for the maintenance work and in respect of the use of an external pump. He saw it as part of Mr Price's supervisory duties to check that Mr McLaughlin was doing both Take 5's and JHA's.
3. The next in line of authority was Mr Baad. He was aware Mr Torralba wanted the Vector Lifting people brought in to repair the scissor lift and was also aware that Mr Price allocated the job to Mr McLaughlin.
4. He identified the supervisor as Mr Price (although sometimes it would be Mr Allan). Mr Baad thought that Mr price should allocate tasks, discuss those tasks and assist to identify risks. If there were risks those were to be mitigated. He was not sure if Mr Allan should have also had some involvement.
5. Mr Baad was not familiar with what Mr McLaughlin was doing on a daily basis.
6. He thought that a JHA was necessary and that Take 5's and JHA's should be checked by supervisors. He pointed to the Safe Act Observation which specifically required of supervisors that they do the checking.
7. Mr Allen denied any responsibility for supervising Mr McLaughlin and said the supervisor was Mr Price. He was aware of Mr McLaughlin hiring pumps (albeit in working on the southern side lift) and that he was 'bypassing in fitting the pumps outside'. He was not aware of the fitting of the ball valve on the northern side lift. He was only otherwise interested in the lifts working.
8. Mr price agreed he was Mr McLaughlin's supervisor.
9. He could remember Mr McLaughlin doing a couple of JHA's in the 'early stages' which presumably meant the early stages of his appointment as supervisor. This would [have] been sometime in early 2008.
10. He also asked Mr McLaughlin on a couple of occasions in the weeks or months leading up to the accident for his Take 5's and sighted them.
11. Mr Price accepted that he was responsible for Mr McLaughlin doing a JHA.
12. He said that Mr McLaughlin was working on the scissor lift he looked at some Take 5 documentation but could not recall a JHA.
13. He understood Mr McLaughlin was fault finding with the scissor lift using the on board controls.
14. He was aware that Mr McLaughlin was using external pumps and that the scissor lift had been damaged.
15. He did not look at the detail of the work Mr McLaughlin was doing on the northern scissor lift because Mr McLaughlin was a very competent tradesperson.
16. Mr Price had no knowledge of the ball valve arrangement.

71 The magistrate then dealt with the level of supervision required noting that Mr Lynch thought that Mr McLaughlin was quite experienced and had worked on some very complex pieces of equipment, more complex than the scissor lift, and the hydraulic work on the scissor lift was well within his competency. Mr O'Reilly agreed that Mr McLaughlin was knowledgeable. Mr Price thought Mr McLaughlin was a very competent tradesman and was 'spot on'.

1. Mr Torralba wanted to engage Vector Lifting to do the work on the scissor lift because he saw them as the professionals. He thought the decision to do the work in house was wrong and seized involvement in the issue.

73 Mr Simms detailed a number of mistakes that Mr McLaughlin made:

1. In his report Mr Simms details a number of mistakes that Mr McLaughlin appears to have made which included:

- incorrectly assembling the new pump despite having done that assembly in conjunction with Mr O'Reilly;

- having incorrect settings on the pressure relief and flow control valves.

74 Mr Maher knew that Mr McLaughlin had a lot of trouble with the scissor lift:

1. Mr Maher said he had known for quite a while that Mr McLaughlin had a lot of trouble with the scissor lift.

1. In my judgment there was a failure to provide instruction and supervision to Mr McLaughlin.
2. It is a legitimate perspective to see Vector Lifting as the 'professionals' and (for want of a better term and without disrespect) to see Mr McLaughlin as the enthusiastic experienced amateur.
3. Mr McLaughlin did work on other, and complex, pieces of hydraulic equipment but had not built up any significant level of expertise and experience working on the scissor lifts.
4. After Vector Lifting's involvement was cancelled it was agreed that they would provide advice if required.
5. While I accept there can be a distinction between instruction and supervision as to details of hydraulic work and safety controls there is no evidence that Mr McLaughlin was advised that he could and should contact Vector Lifting about details of his hydraulic work.
6. I conclude that no instruction was given to Mr McLaughlin other than he should work on and repair the scissor lifts. His supervisors lack of knowledge about what Mr McLaughlin was doing was embarrassingly illustrated by Mr Price's evidence that Mr McLaughlin was fault finding by operating the lift.
7. Despite his evidence that he was regularly moving throughout the workshop, spoke to Mr McLaughlin and checked some of his Take 5's I conclude that Mr Price had nothing other than a generalised knowledge that Mr McLaughlin was working on the scissor lift.
8. In my judgment this discloses a fundamental lack of supervision for the following reasons:
   • The Accused's superintendent of engineering Mr Lynch and Acting superintendent of the Locomotive Overhaul workshop Mr Baad both stated:

- that Mr McLaughlin working on the scissor lifts was nonstandard or nonroutine;

- they saw the available manuals as inadequate and that JHA's needed to be done.

This didn't happen. No JHA's were done and either no, or very few Take 5's were even completed by Mr McLaughlin.

1. Mr McLaughlin fundamentally (albeit temporarily) altered the hydraulics of the northern scissor lift when he:

- by passed the operation of the onboard pump and used external pumps;

There was no evidence that Mr Price or anybody else in a position of authority over Mr McLaughlin;

- was ever required to, or did, authorise or discuss any of these changes; or

- required any Take 5's or JHA's in respect of such changes;

notwithstanding their fundamental nature and that Superintendent of Engineering Mr Lynch required and expected that the supervisors role would be to work with Mr McLaughlin around task allocation, monitor the jobs and Mr McLaughlin's safety, assist with parts procurement and with getting the job done. Mr Baad also thought there should have been some discussions between Mr McLaughlin and Mr Price looking at risks and mitigation.

76 After dealing with the external pump and a ball valve the magistrate concluded:

1. It can be readily accepted that whether you have the ball valve fitted within or outside the descent path you don't go into the descent path without the safety bar in place but discussions may bring about the following:

- a protocol for operating the ball valve including it being accessed only from the 'road level' side an never from the maintenance level side;

- the use of packing blocks or specially designed support frames that Mr Lynch spoke of or of 'chocking' the lift as Mr Henderson spoke of.

- the use of a simple but apparently effective extension of the ball valve as demonstrated by Pressure Dynamics.

1. If you don't, as a supervisor, ensure that an employee has addressed risks and controls you potentially have exposure to risk without controls.

77 Having found (as it was well open for him to do) that there was a failure to supervise or instruct the magistrate held:

1. The task Mr McLaughlin was given was non-standard;
2. The task was perhaps more complicated by the fact that the scissor lift had been damaged;
3. Mr McLaughlin was making mistakes and finding the task difficult. It is a reasonable inference that he was taking longer than he thought he would.
4. Mr McLaughlin was required on a daily basis to complete a Take 5 form listing the activity he was engaged in, the risks associated with it, and the controls for such risks. He completed few, if any such forms.
5. Mr McLaughlin should have completed JHA's for at least the major aspects of his works that involved the alterations of the hydraulics. This would have involved the supervisor with potential concerns being raised about the positioning of the ball valve within the descent path.
6. The absence of any documentary evidence otherwise allows the reasonable inference that Mr McLaughlin had not properly addressed the risks inherent with what he was doing nor controls that were appropriate.

1. In this matter the doing of Take 5's, JHA's and of appropriate supervision were all appropriate and intended steps that the Accused didn't and should have enforced.
2. It is with respect no good having a work environment 'geared towards safety' if the safety regime is not properly enforced.

1. In my judgment the evidence establishes through Mr Lynch and Mr Baad that the Accused had reasonable and proper expectations of supervision and the doing of Take 5's and JHA's and it had the SAO program to assist with that. When there is not the proper level of supervision that is a failure by the Accused.

78 The unchallenged findings of the magistrate are sufficient to establish a breach of the Mines Safety and Inspection Act s 9(1)(b). I dismiss the appeal on grounds (3) and (4). I allow the appeal on grounds (5) and (6) (the causation grounds) substantially for the reasons given in allowing the appeal in ground (1).

79 The appellant had procedures in place to instruct and supervise employees but did not follow them. The appellant did not enforce its own requirements for JHAs to be completed. In the circumstances the appellant is at least liable to conviction under s 9A(3).

80 In order to sustain a penalty under s 9A(2) the prosecution must link by proof beyond reasonable doubt both the contravention and the cause of death.

81 The flaw in the magistrate's reasoning appears in [397]. I accept that the appellant failed to take all reasonably practicable steps by way of instruction and supervision to reduce the exposure to hazards. However, the operative cause of the death of Mr McLaughlin was the platform descending on him while he was (for whatever reason) underneath the scissor lift platform to such an extent that it caught him. The scissor lift descended because the safety bar was not in place. This was a recognised safety measure about which Mr McLaughlin had demonstrated knowledge repeatedly. On all the evidence Mr McLaughlin, a conscientious and careful employee, knew of the hazard and knew of the one step which would undoubtedly prevent the hazard occurring: fitting the safety bar.

82 While other steps could and should have been addressed in better supervision and a JHA being completed for the job, it cannot be established beyond reasonable doubt that the failure to supervise or instruct was the cause of death.

84 I set aside so much of the conviction that exposes the appellant to a penalty pursuant to the Mines Safety and Inspection Act s 9A(2). I will hear submissions as to the appropriate penalty under s 9A(3).

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BHP BILLITON IRON ORE PTY LTD -v- CAPON [2014] WASC 267 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Occupational health and safety - Mine safety - Penalty for breach of general duty

Mines Safety and Inspection Act 1994 (WA), s 9A(3)

1 McKECHNIE J: The appellant was convicted of contravening the Mines Safety and Inspection Act 1994 (WA) s 9(1) in circumstances where s 9A(2) applied, exposing the appellant to a maximum penalty of $400,000.

2 On appeal I set aside so much of the conviction as was based on s 9A(2) and found that the appellant had breached the employer's duties in s 9(1) and was exposed to a fine of a maximum penalty of $200,000 under s 9A(3).

The fine of $130,000 imposed by the Magistrates Court on the appellant on 19 March 2013 is set aside and in lieu thereof I impose a fine of $60,000.

4 I said that I would publish reasons for the imposition of the fine of $60,000. These are the reasons.

The objects of the Mines Safety and Inspection Act

(a) to promote, and secure the safety and health of persons engaged in mining operations; and

(b) to assist employers and employees to identify and reduce hazards relating to mines, mining operations, work systems and plant at mines; and

(c) to protect employees against the risks associated with mines, mining operations, work systems at mines, and plant and hazardous substances at mines by eliminating those risks, or imposing effective controls in order to minimize them; and

5 Any punishment imposed must promote these objects.

6 The Mines Safety and Inspection Act differentiates between the cases where death is caused by a breach of the general employer's duties under s 9 and cases where cause of death is not alleged or proven. It is wrong in principle to treat the absence of a cause of death as lessening an employer's liability under s 9(3). Section 9(3) imposes a significant maximum penalty in any circumstance where there has been a breach of the employer's duties under s 9.

7 The provisions of the Mines Safety and Inspection Act and the Occupational Safety and Health Act 1984 (WA) are closely aligned as to sentencing principles and guidelines, so I have drawn on cases under the Occupational Safety and Health Act in formulating a list of general principles and guidelines.[1] These are of general applicability and are not exhaustive:

• A sentence imposed on an offender must be commensurate with the seriousness of the offence.
• The seriousness of an offence must be determined by taking into account:

- the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and

• Because of the infinite possibility as to the circumstances of a breach of duty there is no tariff for offences but an appropriate level of consistency with other fines should be maintained.
• The legislation should have a deterrent effect requiring employers to take appropriate steps to provide a safe working environment.
• The legislation is designed to bring home the consequences of failing to comply with necessary and prudent occupational health and safety requirements in the workplace.
• Whether a fine should be imposed for principles of general deterrence.
• Whether there is a need for personal deterrence.
• Whether the offending employer has pleaded guilty and at what stage in the proceedings.
• The absence of a plea of guilty does not aggravate the offence.
• Whether the event demonstrates a course of conduct or whether it is a single event where safety instructions are overlooked.
• Whether safety instructions were overlooked because of a failure to supervise over time.
• The nature of the risk and the serious harm that might flow from a breach of the employer's duty.
• The severity of the lack of care or other criminal conduct.
• Whether there was a knowing acceptance of danger for commercial reasons or convenience.
• Whether the employer has taken measures following the event to prevent a recurrence.
• The employer's general safety record.
• The employer's 'good character' sometimes demonstrated by its actions as a corporate citizen.

8 Because of the infinite variety of ways in which occupational health and safety laws can be breached, a tariff will always be elusive.

9 Even resort to a range of fines commonly imposed is unlikely to give much guidance in setting an appropriate fine: Barbaro v The Queen; Zirilli v the Queen [2014] HCA 2; (2014) 305 ALR 323 [25] [28].

10 In written submissions the appellant outlined a number of cases, some taken from the Department of Mines and Petroleum website. Penalties range from 1% of the maximum to 40% of the maximum although each of these was an outlier. I do not find comparisons within the range of other fines to be very helpful. To the extent that the range provides some basis for sentencing I note that 30% of the maximum is within the range.

1. In my judgment there was a failure to provide instruction and supervision to Mr McLaughlin.

1. I conclude that no instruction was given to Mr McLaughlin other than he should work on and repair the scissor lifts. His supervisors lack of knowledge about what Mr McLaughlin was doing was embarrassingly illustrated by Mr Price's evidence that Mr McLaughlin was fault finding by operating the lift.
2. Despite his evidence that he was regularly moving throughout the workshop, spoke to Mr McLaughlin and checked some of his Take 5's I conclude that Mr Price had nothing other than a generalised knowledge that Mr McLaughlin was working on the scissor lift.
3. In my judgment this discloses a fundamental lack of supervision for the following reasons:
   • The Accused's superintendent of engineering Mr Lynch and Acting superintendent of the Locomotive Overhaul workshop Mr Baad both stated:

- that Mr McLaughlin working on the scissor lifts was non-standard or non-routine;

- they saw the available manuals as inadequate and that JHA's needed to be done.

This didn't happen. No JHA's were done and either no, or very few Take 5's were even completed by Mr McLaughlin.

1. Mr McLaughlin fundamentally (albeit temporarily) altered the hydraulics of the northern scissor lift when he:

- by passed the operation of the onboard pump and used external pumps;

There was no evidence that Mr Price or anybody else in a position of authority over Mr McLaughlin;

- was ever required to, or did, authorise or discuss any of these changes; or

- required any Take 5's or JHA's in respect of such changes;

1. Mr McLaughlin was required on a daily basis to complete a Take 5 form listing the activity he was engaged in, the risks associated with it, and the controls for such risks. He completed few, if any such forms.
2. Mr McLaughlin should have completed JHA's for at least the major aspects of his works that involved the alterations of the hydraulics. This would have involved the supervisor with potential concerns being raised about the positioning of the ball valve within the descent path.
3. The absence of any documentary evidence otherwise allows the reasonable inference that Mr McLaughlin had not properly addressed the risks inherent with what he was doing nor controls that were appropriate.

1. In this matter the doing of Take 5's, JHA's and of appropriate supervision were all appropriate and intended steps that the Accused didn't and should have enforced.
2. It is with respect no good having a work environment 'geared towards safety' if the safety regime is not properly enforced.

1. In my judgment the evidence establishes through Mr Lynch and Mr Baad that the Accused had reasonable and proper expectations of supervision and the doing of Take 5's and JHA's and it had the SAO program to assist with that. When there is not the proper level of supervision that is a failure by the Accused.

12 In setting the appropriate sentence, in addition to the facts as found by the magistrate, I also took into account the following.

13 I accept the submission of the respondent, because of the nonroutine nature of the work being performed on the scissor lift, the particular hazards were not regularly encountered in the workplace. The unusual nature of the activity was the very matter which gave rise to the important need to ensure those particular hazards were formally assessed and directed consideration as to how they were to be avoided.

14 The appellant had a welldocumented and recognised procedure for JHAs to be completed. The purpose of a JHA is to bring home to employees the hazards involved in the work and advise them of the precautions which need to be taken to avoid injury or danger to health.

15 However, the appellant's system was unsafe because there was no sufficient enforcement of a regular requirement to carry out a JHA. This was compounded by the lack of proper supervision. Even though Mr McLaughlin was an experienced and capable employee, he seems to have been largely left on his own to both undertake the work on the scissor lift and to consider and avoid the hazards of his workplace.

16 Nor were the Take 5s properly enforced. A Take 5 is another wellrecognised safety procedure designed to ensure that the employee would be constantly vigilant.

17 The risk of death and injury in undertaking the work was such that the appellant's breach of duty is considerable even though the fine is not imposed for causing death.

18 I do not characterise the employer's breach as a one off or single event where safety instructions are overlooked. That is because the breach of duty was a continuing breach over a considerable period of time. The appellant had many opportunities to enforce its own safety procedures during that time but did not do so.

19 The Sentencing Act s 53 provides:

(1) Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account -

(b) the extent to which payment of the fine will burden the offender.

(2) A court may fine an offender even though it has been unable to find out about the matters in subsection (1).

(3) A court must not fine an offender if satisfied that after paying compensation to the victim in accordance with a compensation order under Part 16, the offender will be unable to pay the fine within a reasonable time.

20 The appellant, represented by counsel, did not urge in submissions any need for reduction of penalty through inability to pay a fine.

21 Subject to any adjustment which is necessary after applying s 53, it is appropriate to set a penalty for a breach of general employer duties under the Mines Safety and Inspection Act and the Occupational Health and Safety Act by reference to a percentage of the maximum penalty, having regard to the circumstances of the offence and all aggravating and mitigating factors.

22 There is need for general deterrence; that is, a reminder to other employers of the importance of maintaining a safe working environment and, in a hazardous industry, enforcing the requirements for JHAs, Take 5s and supervision of unusual tasks.

23 There is no evidence that the appellant engaged in the breach as a knowing acceptance of the danger for commercial reasons or for convenience.

24 The appellant's safety record, together with the exemplary steps it has taken since the event as outlined in the appellant's sentencing submissions to the magistrate, and repeated to me (also a separate matter of mitigation), indicates that it has well understood the consequences of its breach.

25 I also take into account the appellant's good character as demonstrated by its behaviour as a good corporate citizen and other matters in the appellant's submissions which are unnecessary to repeat.

26 I consider that the appropriate fine in all the circumstances should represent 30% of the maximum penalty, that is a fine of $60,000.

[1] These principles are distilled from the Sentencing Act 1995 (WA), Ogonowski v McCarron (Unreported, WASC, Library No 8119, 8 March 1990); Palynolab Resources Pty Ltd v Morrison (Unreported, WASC, Library No 960477, 22 August 1996); Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435; Morrison v Competitive Foods Ltd T/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991); Murphy v Morrison (Unreported, WASC, Library No 960089, 15 February 1996); Reilly v Tobiassen [2008] WASC 92; Superfine Homes Pty Ltd v Shepherd (Unreported, WASC, Library No 990088, 2 March 1999); Ausdrill Ltd v Hanekom [2009] WASC 307; Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194(S); Morrison v Winton (Unreported, WASC, Library No 960698, 12 December 1996); Debri Pty Ltd T/as R&K Installations v Morrison [2012] WASC 364; R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 291.