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.