Cahill v State of New South Wales [2005] NSWIRComm 400 | Case summary

Cahill v State of New South Wales [2005] NSWIRComm 400 | Case summary | Zoe

1 This judgment concerns three matters arising from the judgment in Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33: (1) The determination of an appropriate penalty for the offence committed by the defendant, the State of New South Wales (NSW Police), in respect of which the defendant was found guilty in Cahill v State of New South Wales (NSW Police) ; (2) A notice of motion by the prosecutor, John Joseph Cahill, for restoration orders under s 113 of the Occupational Health and Safety Act 2000; (3) A notice of motion by the prosecutor, John Joseph Cahill, for orders under s 116 of the Occupational Health and Safety Act 2000 for the defendant to undertake an occupational health and safety project. The charge 2 In Cahill v State of New South Wales (NSW Police) the defendant was found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000. The charge in respect of which the guilty finding was made was that the defendant: [A]t the NSW Police Radio Network Services workshops at Waratah, New South Wales, an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Anthony James Hutchins, in that the accused person did not ensure systems of work were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge were that: (1) The accused person employed sworn members of the NSW Police and Technical Officers at the workplace. (2) From time to time, sirens fitted on police vehicles were activated at the workplace. 3) There was a potential risk that there might be harm to the hearing of Technical Officers and in particular Mr Hutchins. (4) Senior Constable Bell activated a siren fitted to police vehicle XQX 296 when Mr Hutchins was in front of the vehicle inspecting a winch and he suffered to his right ear acoustic trauma with persisting tinnitus. (5) The accused person's breaches comprised any of the following aspects: (i) Failing to prevent Senior Constable Bell at the workplace activating the siren fitted to police vehicle XQX 296. (ii) Failing to ensure before the activation that all personnel in the vicinity of sirens fitted on a police vehicle were aware of the activation. (iii) Failing to have in place a noise control policy, namely, a written policy, developed by the employer in consultation with employees and employee representatives which in respect of siren activation sets goals for noise exposure in the workplace and the strategies to be used to meet these goals. (iv) Failing to provide information, training and education to persons working at this place of work about what noise is, the range of health effects due to noise from siren activation and the appropriate control measures. (v) Failing to provide personal hearing protectors, namely a device, or pair of devices, worn by a person or inserted in the ears of a person to protect the person's hearing when sirens were activated. (vi) Failing to identify, with the use of appropriate signs, hearing protection areas in which sirens were to be activated. (6) There was a causal nexus between any of the accused person's breaches and the potential risk. (7) Additionally, or in the alternative, there was a causal nexus between any of the accused person's breaches and the actual injury to Mr Hutchins. The judgment on liability 3 In relation to the nature of the risk, the Court found at [39]-[42] of the judgment on liability that: 39 Whilst the drafting of the charge leaves something to be desired, it is apparent that the specific risk alleged by the defendant was that on 10 December 2001 Mr Hutchins was placed at risk of harm to his hearing by Senior Constable Bell activating the siren fitted to police vehicle XQX 296 whilst Mr Hutchins was in front of the vehicle inspecting a winch.

42 To find that a specific risk existed is not, as the defendant submitted, to wrongly focus on the actual incident. I am not approaching the matter from the perspective of the "result", i.e., the harm caused to Mr Hutchins by the activation of the siren, but rather that the circumstances described above created a risk to health and safety and the fact that an injury was the result merely supports the fact that a risk existed: Drake Personnel Limited (t/as Drake Industrial) v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452. 4 As to the particular that the defendant failed to prevent Senior Constable Bell at the workplace activating the siren fitted to police vehicle XQX 296, the Court found at [44] that the defendant failed to prevent Senior Constable Bell activating the siren in circumstances where Mr Hutchins was leaning down in front of the vehicle with his head somewhere between 30 and 50 centimetres from the grille behind which was located the siren's speaker. The Court, however, posed the question as to whether that failure was causally connected to the risk to health and safety. In this respect at [49]-[50] the Court found: Whilst there is no doubt that the immediate cause of the risk of harm to Mr Hutchins was the action of Senior Constable Bell in activating the siren, it is necessary to go behind the immediate cause and ask whether the act or omission of the defendant in failing to prevent Senior Constable Bell activating the siren was a "substantial or significant cause [of the risk] viewed in a commonsense and practical way". 50 It is impossible to come to any view other than that if Senior Constable Bell had been prevented by the defendant from activating the siren, no risk to health and safety would have arisen. As Dr Williams said in his evidence, any risk would have been eliminated if the siren had not been activated. Particular 5(i) to the charge is made out. Whether or not it was reasonably practicable for the defendant to prevent Senior Constable Bell from activating the siren or the activation of the siren was a matter over which the defendant had no control and against the happening of which it was impracticable to the defendant to make provision, is an issue to be considered in the context of the defences available to the applicant pursuant to s 28 of the Act. 5 The charge alleged the defendant failed to ensure before the activation of the siren that all personnel in the vicinity of sirens fitted on a police vehicle were aware of the activation. In this respect, the Court found at [51]: The evidence was that Mr Hutchins was not warned that the siren on the Toyota vehicle was about to be activated on 10 December 2001. The defendant failed, therefore, to ensure before the activation that all personnel in the vicinity of sirens fitted on a police vehicle were aware of the activation. As a matter of plain commonsense and as the evidence of Dr Williams confirmed, by having a procedure in place that ensured the siren was not activated without workers being aware of the impending activation and wearing adequate and properly fitted hearing protection, the risk of injury would have at least been reduced. The failure of the defendant as particularised caused Mr Hutchins to be exposed to the risk of harm, that harm being acute acoustic trauma. Particular 5(ii) is made out. 6 The other four particulars of the charge were that: (iii) Failing to have in place a noise control policy, namely, a written policy, developed by the employer in consultation with employees and employee representatives which in respect of siren activation sets goals for noise exposure in the workplace and the strategies to be used to meet these goals. (iv) Failing to provide information, training and education to persons working at this place of work about what noise is, the range of health effects due to noise from siren activation and the appropriate control measures. (v) Failing to provide personal hearing protectors, namely a device, or pair of devices, worn by a person or inserted in the ears of a person to protect the person's hearing when sirens were activated.

58 That is, the Court could not find beyond reasonable doubt that if the defendant had implemented any or all of the above measures, Senior Constable Bell would not have activated the siren on 10 December 2001. In my opinion, except in the case of (c), the above measures would have prevented the practical joke played by Senior Constable Bell on 10 December 2001. A written policy, established in consultation with employees setting goals for noise exposure in the workplace and the strategies to be used to meet these goals, would have undoubtedly expressly prohibited the activation of a siren when a person was likely to suffer harm. Information, training and education would have informed Senior Constable Bell of the potential effect activation of a siren would have on a person's health and safety at close range, i.e., 30 to 50 centimetres. That is, acute acoustic trauma. It is most unlikely Senior Constable Bell would have played his practical joke knowing it may cause serious injury. The mere provision of hearing protection, on its own, may not have prevented the activation of the siren by Senior Constable Bell and given that Mr Hutchins was inspecting a winch on the subject vehicle he may not have considered the need to wear hearing protection. The identification, with the use of appropriate signs, of hearing protection areas in which sirens were to be activated would have given a clear indication to Senior Constable Bell that activating a siren outside the designated areas was prohibited and it is unlikely that a person in his position would have deliberately disobeyed such a clear instruction. ... 62 In the present case, if an appropriate policy relating to the regulation of noise had been promulgated in the defendant's workshop and proper instruction and directions had alerted personnel to the dangers of excessive noise to health and safety and prohibited the activation of sirens other than in circumstances that were safe it would undoubtedly, in my opinion, have dissuaded Senior Constable Bell from activating the siren thereby avoiding the risk of serious injury to Mr Hutchins. As it was, there was absolutely nothing the defendant had done or said that may have alerted Senior Constable Bell to the potential consequences of his practical joke. 9 At [67] the Court held: 67 I find that the defendant failed in the manner particularised in particulars 5(i), (ii, (iii), (iv) and (vi) of the charge to ensure the health, safety and welfare at work of all of its employees, and in particular Anthony James Hutchins, in that the accused person did not ensure systems of work were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000 unless it establishes a defence under s 28 of the Act. 10 In relation to the defences available under s 28 the Court found these had not been made out. At [83] the Court held: I am satisfied beyond reasonable doubt that on 10 December 2001 the defendant failed to ensure the health, safety and welfare at work of all of its employees, and in particular Anthony James Hutchins, in that the accused person did not ensure systems of work were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. Evidence relating to penalty 11 Mr Docking of counsel for the prosecutor tendered a statement of Mr Hutchins. Mr Hutchins was not required for cross-examination. The statement went largely to the nature of the injury sustained by Mr Hutchins and the consequences of the injury for him and his family. Mr Hutchins' medical condition had not improved. He suffers regular pain and discomfort in his ears and needs to wear a noise generator every day in his right ear to mask the tinnitus. He is extremely sensitive to noise. Mr Hutchins has suffered from anxiety and depression and found it necessary to seek the assistance of a clinical psychologist in that regard. The injury has placed an enormous strain on Mr Hutchins' marriage and he can no longer interact with people on a normal social level. 12 Mr Hutchins remains unemployed despite his attempts to find employment. The payments he receives from workers' compensation are inadequate and he and his family are under severe financial strain. 13 An affidavit of the prosecutor, Mr Cahill, was read. The affidavit was in support of a claim for the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") to be granted a moiety. Mr Cahill is the general secretary of the PSA. If a moiety were granted, Mr Cahill deposed that the money would be used to "assist the Executive with OH&S related training and education." Mr Cahill noted the PSA had previously been granted a moiety by Peterson J in Maurice Michael O'Sullivan v Roads and Traffic Authority of New South Wales [2002] NSWIRComm 214. The money was spent on wages for occupational health and safety officers and occupational health and safety education and training. 14 Mr Docking also tendered the Factories (Health and Safety - Hearing Conservation) Regulation 1979, the Second Reading speech by the Minister for Industrial Relations, the Honourable Pat Hills, in relation to the Occupational Health and Safety Bill 1982 (Hansard, 1 December 1982, pp 3683 to 3689), a memorandum dated 5 April 2005 to Assistant Commissioner Reg Mahoney, Commander Communications Branch from Superintendent Philip Flogel, Staff Officer, Deputy Commissioner Support requesting urgent attention be given to a number of matters arising out of the judgment in Cahill v State of New South Wales (NSW Police) and an email communication dated 4 July 2005 setting out the Standard Operating Procedure to be adopted by NSW Police in relation to "siren safety". 15 For the defendant a number of affidavits were read. Firstly, the affidavit of John Gardiner, a Senior Sergeant of Police and the head teacher of the Police Driver Training Unit. Sergeant Gardiner deposed to the steps taken in his Unit following the judgment in Cahill v State of New South Wales (NSW Police) to include in training programs the issue of the safe use and testing of sirens. 16 Secondly, the affidavit of Bradley Shepherd, Superintendent of Police and Centre Manager, Sydney Communications. Superintendent Shepherd described the changes made to Police procedures following the judgment in Cahill v State of New South Wales (NSW Police). The Superintendent stated the following initiatives were taken: · From 29 April 2005 all Police Driver Training Unit Supervisors were instructed to include safety briefings to all Bronze, Silver Response and Highway Patrol Phase 1 driving courses. · On 23 June 2005 NSW Police released state-wide Standing Operating Procedures (SOPs) for Siren Safety. This SOP referred to the potential use of foam inside sirens to reduce the noise level of a siren. It should be noted that rags and not foam were used by NSW Police to reduce the noise levels of the sirens. An amendment was made to the SOPs on 4 July 2005 and the amended SOPs were released on 4 July 2005. · Hearing protection in the form of ear muffs and/or ear plugs are provided at all Radio Network Services units and at Fleet Management. · Warning signs have been erected at all Radio Network Services Units and Fleet Management. · An induction package for staff and visitors was approved by Communications Centre Managers on 18 May 2005 for adoption at each Radio Network Services Unit. In relation to sirens the following is stated "When testing sirens, hearing protection is to be worn. Immediately prior to this happening, a general warning advising all persons in the near vicinity that sirens are about to be tested, is sounded. The workshop door is to be closed to reduce in-coming noise from the work bays." · NSW Police Vehicle Standards Committee have requested for the Police Driver Training Unit to develop a Six Minute Intensive Training (SMIT) package for delivery throughout the State based on safety for testing, operating and consideration of safety of others.

20 In Cahill v State of New South Wales (NSW Police) the Court found that the defendant had failed in its obligation to ensure the safety of its employees, and in particular Anthony James Hutchins, in five respects, namely by: (1) Failing to prevent Senior Constable Bell at the workplace activating the siren fitted to police vehicle XQX 296. (2) Failing to ensure before the activation that all personnel in the vicinity of sirens fitted on a police vehicle were aware of the activation. (3) Failing to have in place a noise control policy, namely, a written policy, developed by the employer in consultation with employees and employee representatives which in respect of siren activation sets goals for noise exposure in the workplace and the strategies to be used to meet these goals. (4) Failing to provide information, training and education to persons working at this place of work about what noise is, the range of health effects due to noise from siren activation and the appropriate control measures. (5) Failing to identify, with the use of appropriate signs, hearing protection areas in which sirens were to be activated. 21 Collectively, the failures amount to a serious offence. The location of the offence was in a workshop where sirens capable of emitting a sound level of 125dB to 129dB were regularly tested. The failures indicated either a serious disregard for the safety of personnel likely to be subjected to noise from the sirens or that the defendant simply did not comprehend - as it clearly should have - that the high noise levels emitted by a siren could have such devastating consequences for a person's hearing. 22 Even if it be accepted that the defendant did not foresee the prospect of injury from the noise of a siren in the precise circumstances surrounding Mr Hutchins' injury, the defendant's failures revealed a completely inadequate approach to the problem of noise in the workplace: A lack of information, training and education; a lack of any system to ensure protection against hearing loss. 23 In the liability judgment the Court observed at [74]-[75]: 74 Was Mr Hutchins subjected to a risk of acute acoustic trauma that may cause hearing loss and injury to the ear? Clearly, he was. He suffered acute acoustic trauma following the activation of the siren by Senior Constable Bell on 10 December 2001; he was exposed to the noise of the siren for a period greater than one second; the siren was capable of emitting sound levels of 129dB; he was exposed to a sound level greater than 115dB; and, his right ear was within 30 to 50 centimetres of the siren's speaker.

75 For a defendant that conducts a workshop where sirens, capable of emitting "a very powerful blast at high volume level" (to use the words of the defendant in its report to its insurer), are activated on a frequent basis, it is somewhat perplexing that it would contend in defence of its position that "it is not reasonable practicable to comply with a standard, that is, 115dB if the standard is unknown and not promulgated" in circumstances where, prior to 10 December 2001, the defendant's policies and practices relating to noise and its effect on health and safety were practically non-existent. 24 Counsel for the defendant had submitted that the exposure on the 10 December 2001 came about under abnormal circumstances; that there was no siren testing being performed on the vehicle nor was there a requirement to perform siren testing on this vehicle. The siren was intentionally activated by Senior Constable Bell for the specific purpose of it making a noise whilst Mr Hutchins was in very close proximity to the bugle horn. I accept that the foolish practical joke carried out by Senior Constable Bell mitigates the seriousness of the offence committed by the defendant. In other words, if the risk had arisen whilst sirens were actually being tested I would have regarded the offence as being much more serious. But Senior Constable Bell's action in activating the siren reduces the defendant's culpability. It does not, however, eliminate it because as I found in the judgment on liability at [62]: In the present case, if an appropriate policy relating to the regulation of noise had been promulgated in the defendant's workshop and proper instruction and directions had alerted personnel to the dangers of excessive noise to health and safety and prohibited the activation of sirens other than in circumstances that were safe it would undoubtedly, in my opinion, have dissuaded Senior Constable Bell from activating the siren thereby avoiding the risk of serious injury to Mr Hutchins. As it was, there was absolutely nothing the defendant had done or said that may have alerted Senior Constable Bell to the potential consequences of his practical joke. 25 The existence of a reasonably foreseeable risk to health or safety will result in the offence being more serious in nature: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [82]. In the judgment on liability in the present matter the Court found at [80]-[81]: 80 It is not a question whether the incident was reasonably foreseeable, that is Senior Constable Bell playing a practical joke by activating a siren whilst Mr Hutchins' right ear was next to the siren's speaker. The questions are: whether in the absence of proper policies and procedures it was foreseeable that the health of a person might be placed at risk from exposure to sound levels emitted from a siren; whether the defendant had control over what caused the risk; and, whether it was impracticable for the defendant to make provision to eliminate or avoid the risk.

81 In circumstances where personnel were regularly fitting and testing sirens that emitted "a very powerful blast at high volume level" it was readily foreseeable that harm might be caused to a person's hearing if they were close to the siren at the time it was activated, especially in circumstances where no hearing protection was provided and no training education or instruction was given to personnel about the harmful effects of high level sound. 26 The seriousness of the offence may also be gauged by asking whether there were simple and obvious remedial measures available to avoid or minimise the risk but which were not implemented: see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476 and Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. In the present case such measures were available. These included appropriate control measures referred to in the particulars that were made out. 27 In Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18], it was held that although the damage or injury does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: see also Capral Aluminium at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 28 If there had been evidence that the defendant knew of and understood the risk associated with a powerful blast of noise at close quarters and the damage it could do and had not taken steps to prevent or eliminate the risk I would have regarded the offence at the higher end of seriousness. I am prepared to accept, however, that the defendant did not fully comprehend the nature of the risk of harm that might be caused to a person's hearing if they were close to the siren at the time it was activated. Nevertheless, as I have found, it was readily foreseeable that harm might be caused to a person's hearing if they were close to the siren at the time it was activated, especially in circumstances where no hearing protection was provided and no training education or instruction was given to personnel about the harmful effects of high-level sound. 29 The injury to Mr Hutchins was devastating. It has affected him physically and emotionally, caused him to be without employment and placed a financial strain on him. These are matters I am entitled to take into account under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 30 General deterrence is a matter of some significance. At [20]-[21] of the judgment on liability the Court stated: 20 Dr Williams was asked whether, within his area of expertise, he would adopt, acknowledge, affirm, qualify or reject any or all parts of the Code of Practice for Noise Management and Protection of Hearing at Work. His reply was in the following terms: The Code of practice defines a hazard as anything that may result in harm to the hearing of a person. The Code of practice states the threshold of pain occurs at about 120dB. Therefore the Code of Practice indicates that sound pressure levels of about 120dB are by definition hazardous. This seems incongruous with a regulated peak level of 140dB(lin) before an area can be designated a "hearing protection area". In my opinion the Code should state that employees should not be exposed to sound pressure levels greater than 115dB without adequate hearing protection.

35 As to the question of contrition, Mr Docking submitted that there had been no expression by the defendant of remorse or contrition. Mr Shume sought leave to put on an affidavit in relation to contrition. Leave was granted but no further evidence was filed in relation to that matter. The Court is left in the position that there has been no expression of remorse or contrition by the defendant and so there is nothing in this regard that can be taken into account in mitigation. Given the seriousness of the injury to Mr Hutchins arising from the defendant's failure I am very surprised at its lack of contrition. 36 There have been a significant number of prior convictions recorded against the State of New South Wales. Those, of course, included the Crown in all of its emanations. However, in relation to the Crown in its emanation as NSW Police there appeared to be only five prior convictions which, given the dangerous nature of police work and the diverse nature of the offences, does not suggest a bad record to the extent that the Court would be inclined to view NSW Police as being at significant risk of causing the Crown to re-offend. I consider NSW Police takes its responsibilities regarding occupational health and safety seriously. 37 There is no discount available for a plea of guilty. 38 It may be seen that the approach I have taken to sentencing in this matter is that set out in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 at [40]: The approach I have taken, therefore, is that required by Lawrenson Diecasting. The guideline judgment in R v Thomson continues to be one this Court is required to take into account and it is appropriate that I indicate a discount at least for the utilitarian value of the guilty plea. In the light of Markarian it is necessary that I take into account all relevant considerations in sentencing (which has always been part of the jurisprudence) and "make a value judgment as to what is the appropriate sentence given all the factors of the case" subject to the approach required by Lawrenson Diecasting . Amongst the objective and subjective factors I am required to take into account are those in ss 21A, 22 and 23 of the Crimes (Sentencing Procedure) Act . I do not consider it is any longer appropriate to take the approach of determining an amount of penalty based on the relevant objective considerations and deducting from that amount allowances for the individual subjective factors. 39 On the basis of this approach I consider an appropriate penalty to be $150,000. 40 The prosecutor has sought a moiety of the fine. The defendant opposes the granting of a moiety. In light of my judgment in Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 I propose to grant a moiety. Application under s 113

Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. 49 Section 117 of the Act, in conjunction with s 17 of the Crimes (Sentencing Procedure) Act, provides the following maximum penalties where an offender is found guilty of failing to comply with an order under Division 2 of Part 7: (a) in the case of a corporation (being a previous offender) - $165,000, or (b) in the case of a corporation (not being a previous offender) - $110,000, or (c) in the case of an individual (being a previous offender) - $41,250, or (d) in the case of an individual (not being a previous offender) - $27,500. 50 Counsel for the prosecutor submitted there were a number of factors supporting the granting of the application: (1) The power of the court to make an order pursuant to section 116 is a discretionary one. (2) The provision does not specify that it is in substitution for a penalty under s 8(1) of the 2000 Act but suggests by its wording and its context within the Act it is rather an additional order to improve occupational health and safety for workers. (3) There may be potential benefits to the broader community, in particular, to local government or State government departments or bodies that use sirens or have systems or work that could have a causal nexus to acute acoustic trauma. In this connection there was evidence that the PSA has other members employed in the public sector who may potentially be exposed to the same or similar risk to Mr Hutchins, including in the Rural Fire Services. (4) It was found beyond reasonable doubt in Cahill v State of New South Wales (NSW Police) that above 115dB there is a real risk of acute acoustic trauma that may cause hearing loss and injury to the ear, which varies with the susceptibility of the individual. (5) In Cahill v State of New South Wales (NSW Police) the Court made the following observations and findings: 8 The prosecutor tendered documentary material that included the following: (a) The Code of Practice for Noise Management and Protection of Hearing at Work issued by the WorkCover Authority of New South Wales, gazetted 31 May 1996 and commencing on 31 May 1997. It was stated in the code that it "provides a framework for managing exposure to noise at work and for minimising the risks of the effects of such exposure. It also provides guidance which will assist employers and employees to understand and conform with the Occupational Health and Safety (Noise) Regulation 1996". The Code contained, amongst other things: the responsibilities of employers and employees for ensuring a safe working environment; training and education objectives and programs; how to carry out a noise assessment; information on audiometric testing; and, relevant definitions including definitions of "decibel", "excessive noise", "hazard", "hearing protection areas" and "risk". The definition of "excessive noise" was that "for the purpose of this national code of practice, noise that exceeds those levels defined in the Occupational Health and Safety (Noise) Regulation 1996." The relevant regulation is now cl 49 of the Occupational Health and Safety Regulation 2001, which provides: 49 Noise management - particular risk control measures (1) An employer must ensure that appropriate control measures are taken if a person is exposed to noise levels that: (a) exceed an 8-hour noise level equivalent of 85 dB(A), or (b) peak at more than 140 dB(C).

Maximum penalty: Level 4. (2) For the purposes of subclause (1): (a) the measurement is to be made in accordance with AS/NZS 1269.1:1998 Occupational noise management Part 1: Measurement and assessment of noise imission (sic) and exposure , and (b) exposure to noise is taken to be measured at the position of the ears of a person, or at an equivalent of that position, and (c) the measurement is to be made on the assumption that the person is not wearing any device to protect himself or herself from noise. ... 19 I am further satisfied that Dr Williams' evidence established the following: … (h) Clause 49(1)(a) of the Occupational Health and Safety Regulation deals with is the gradual process and cl 49(1)(b) deals with impact and impulse noise; it doesn't deal with acute acoustic trauma. The Regulation only applies to hearing loss and not tinnitus. 20 Dr Williams was asked whether, within his area of expertise, he would adopt, acknowledge, affirm, qualify or reject any or all parts of the Code of Practice for Noise Management and Protection of Hearing at Work. His reply was in the following terms: The Code of practice defines a hazard as anything that may result in harm to the hearing of a person. The Code of practice states the threshold of pain occurs at about 120dB. Therefore the Code of Practice indicates that sound pressure levels of about 120dB are by definition hazardous. This seems incongruous with a regulated peak level of 140dB(lin) before an area can be designated a "hearing protection area". In my opinion the Code should state that employees should not be exposed to sound pressure levels greater than 115dB without adequate hearing protection. The forward (sic - foreword) to the Code of Practice for Noise Management states the purpose of the Code is to assist employers and employees to develop and implement practices for noise management and protection of hearing. However there is no expert guidance in this process. In my opinion there should be. 21 It seems to me the opinions expressed by Dr Williams in respect of what the Code should contain are quite appropriate and I agree with them. (6) On 17 December 2004, there was gazetted the publication the "Code of Practice for Noise Management and Protection of Hearing at Work". This Code states: This Code of Practice has been published by the WorkCover Authority of NSW to assist employers, self-employed persons and employees to develop and implement practices for noise management and protection of hearing at work. … The substance of this Code remains unchanged from the initial Code of Practice for Noise Management and Protection of Hearing that commenced on 31 May 1997. … "excessive noise" means, for the purpose of this Code of Practice, noise that exceeds those levels defined in the Occupational Health and Safety Regulation 2001. Thus, it was submitted, Dr Williams' opinions continue to apply with full force to the 2004 Code of Practice. In particular, it was submitted, the 2004 Code of Practice should state that employees should not be exposed to sound pressure levels greater than 115dB without adequate hearing protection and it should provide expert guidance to assist employers and employees to develop and implement practices for noise management and protection of hearing. (7) Whilst cl 49(1)(a) of the Occupational Health and Safety Regulation 2001 deals with the gradual process and cl 49(1)(b) deals with impact and impulse noise, it still does not deal with acute acoustic trauma. (8) It is incongruous that the Factories (Health and Safety - Hearing Conservation) Regulation 1979, repealed on 31 May 1997, in clause 5, Reduction of exposure to noise, prescribed the level of noise by reference to 115 dB(A). See also clauses 4(5), 6 and 8 of that repealed Regulation. (9) The defendant's material on sentence confirms the ongoing and extensive use of sirens and therefore the state-wide existence of the potential danger of acute acoustic trauma to members of the NSW Police (sworn and unsworn) and the general public. This applies during police operations, training or maintenance. (10) Although the actual incidence of acute acoustic trauma might be relatively low as shown by the small number of cases that Dr Williams has been consulted about professionally, the actual injuries of Mr Hutchins demonstrate beyond serious argument, in the future, that there must be provided to employers and employees information and knowledge about all practicable precautions and steps that should be taken to prevent or minimise such injuries arising out of places of work. The State of NSW must have an obligation to contribute to ensuring that the required expert guidance is provided. 51 Mr Shume for the defendant, in opposing the application, submitted: (1) The project bears no relationship to the defendant and its operations or to the offence itself. If the project were related to the offence, there would be no warrant for it, given the actions the defendant has taken since the sentencing hearing. Section 112(2) requires there to be a relationship. (2) The application has been made without reference to WorkCover NSW that oversees the relevant legislation and code of practice. It is not known by the Court or the defendant what the state of knowledge of the Authority is with respect to the areas asked to be the subject of the project. It is submitted that WorkCover NSW must have expertise in the area and that the legislation as presently drafted exists on a quantifiable basis. A project of this kind without the compulsory of the involvement of WorkCover NSW lacks merit. The Court does not have the power to require WorkCover NSW to participate. (3) Given the inability to quantify the cost of the project it is inappropriate to make an order as sought by the prosecutor against the defendant. (4) Alternatively, it is submitted that the Court in making any order would take into account the lack of quantification and factor in the real likelihood of additional costs in excess of $50,000.00. The minimum cost should be assessed between $100,000.00 and $110,000.00. (5) The objective seriousness of the offence falls into the lower range of matters that come before the Court. The totality of the penalty metered (including the cost of the project) should not offend the normal principles of sentencing. In this case were the Court to order the project be completed then it is submitted that the estimated cost exceeds any penalty that would be imposed. (6) The defendant has introduced measures specifically aimed at preventing exposure of its employees to the types of risk involved in this case. Whatever learning may come from this type of project is not likely to affect the day-to-day operation of the NSW Police. (7) The NSW Police do not have the power or authority to impose upon any employer, including WorkCover NSW, the findings of this report. It is a document, if produced, that Dr Williams will have as a resource for presentation at conferences. It can be forwarded to WorkCover NSW but for what action no one can know. (8) The notice of motion seeking an order under s 116 be dismissed. Consideration of application under s 116

52 It seems to me that s 116 could be a useful tool in appropriate circumstances. The power to make such an order is discretionary. Any order made under s 116 would be in addition to and not in substitution for an order, for instance, under s 12 of the Act imposing a penalty. In this respect, I agree with what Mr Miller CIM said in Inspector George Hyland v Penrith City Council [2004] NSWCIMC 45. In that case the defendant submitted that in lieu of a fine being imposed, an order should be made under s 116 requiring the defendant to undertake a project. His Honour stated: Although I understand the defendant's argument that the money to be expended on a fine could be better spent elsewhere in promoting occupational health and safety the defendant must remember that it is before the Court for failing in its duty to ensure the health safety and welfare of all of its employees. In this regard the community through the Legislature has set heavy penalties upon an employer and others for failing to carry out their duties under the Act. The principal objectives of sentencing, such as deterrence, must also be borne in mind. To allow the defendant to carry out a project, which strictly under the Act it should do anyway to ensure its message of a safe work culture is in place amongst its workforce, in lieu of a fine is not in my view penalising the defendant for the breach of the law. 53 Section 112(2) provides that: Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. 54 Section 112(2) reinforces the discretionary nature of the power to make an order under s 116 but makes it clear that such orders are in addition to any penalty or any other action (eg., an order under s 10 of the Crimes (Sentencing Procedure) Act) that may be taken in relation to the offence. I do not consider there is any power to reduce a penalty imposed under the Act in consideration, for example, of the cost of a project ordered to be undertaken under s 116. An order under s 116 is not concerned with penalty but is in addition to a penalty and for an entirely different purpose to punishment, namely, achieving general improvement of occupational health, safety and welfare. 55 That acute acoustic trauma is such a terrible affliction and that there are deficiencies in the legislation and the relevant Code of Practice in relation to acute acoustic trauma, makes the idea of an order under s 116 an attractive one. Moreover, in this case the defendant is the Crown in the right of New South Wales. Further, half the penalty of $150,000 will disappear into consolidated revenue. One alternative use that could be made of that money is to direct it towards the funding of the project envisaged under the proposed orders. However, I have some doubt if there is power to make such an order diverting the money for that purpose. 56 In any event, I do not propose to make the orders sought principally for the reason that an agreement has been reached whereby NSW Police is to engage Dr Williams to review and provide feedback on the measures being taken by NSW Police in relation to siren safety and NSW Police is to pay Dr Williams' reasonable costs for the work he carries out. The Police have indicated that it will implement Dr Williams' recommendations if they are reasonable and appropriate. The orders sought by the prosecutor define the employer as "NSW Police" and under the terms of the orders the burden for financing the project would fall on the employer. It would be unfair, in my opinion, to impose upon NSW Police the cost of the proposed project in the knowledge that the parties have reached agreement with the prosecutor on a proposal tailored to the particular needs of the Police and in respect of which the Police will meet the costs. If the orders sought by the prosecutor were made the Police would, to a significant degree, be paying for the same thing twice. 57 What I do propose to do, however, is to recommend that in carrying out the review in relation to siren safety, NSW Police request Dr Williams to include in any written report the steps or measures he considers necessary to eliminate, prevent, control, ameliorate, mitigate, reduce or minimise acute acoustic trauma in places of work having regard to the shortcomings in the 2004 Code of Practice for Noise Management and Protection of Hearing at Work. Dr Williams' report, once completed, should then be provided to the WorkCover Authority of New South Wales and I recommend that Authority gives active consideration to whether any action should be taken in relation to the report, including any amendments to the Code of Practice. I make those recommendations. I propose to direct the Industrial Registrar to provide a copy of this judgment to the WorkCover Authority. 58 The Court would appreciate being advised on what has been able to be achieved, both in terms of the implementation of Dr Williams' recommendations within NSW Police and WorkCover's response to those recommendations. For that purpose the parties and WorkCover are invited to meet informally with the Court at 9.30 am on Tuesday 14 March 2006. Orders and Direction

Cahill v State of New South Wales

At a glance

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Before

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Judgment (56 paragraphs)

Parties

Cases Cited (13)

Cited By (4)