Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales

JUDGMENT:

• 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Thursday, 16 March 2000

CORINTHIAN INDUSTRIES (SYDNEY) PTY LIMTED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DAVID WILSON).

Application for leave to appeal and appeal against a decision and orders of a Local Court constituted by an Industrial Magistrate given on 27 August 1999 in Matter No. CIM 2066 of 1998.

1 This is an application by Corinthian Industries (Sydney) Pty Limited ("the appellant") for leave to appeal and, if leave be granted, appeal from a decision of a Local Court constituted by Ms P O'Shane, Industrial Magistrate, given on 27 August 1999. 2 The appellant was fined $25,000 by the industrial magistrate and a costs order was made in favour of the prosecutor after the appellant entered a plea of guilty. The maximum penalty for the offence was $55,000. 3 The appeal is based upon the severity of the sentence, although it also raised issues as to the factors to take into account in sentencing by an industrial magistrate. 4 The grounds for leave to appeal were stated in the application as follows: (1) The sentence imposed was manifestly unjust and inordinately harsh in circumstances warranting leniency.

(2) There was a miscarriage of justice in that the penalty was excessive.

(3) There is a need for consistency in judicial adjudication which is the antithesis of arbitrary and capricious decision making. 5 The grounds for appeal were stated as follows: (1) Her Worship failed to give any or adequate consideration to the relevant factors warranting leniency on sentencing.

(2) The sentence imposed is palpably unreasonable in the circumstances of the case.

(3) Such other grounds as appear appropriate following a review of the transcript upon it becoming available.

(4) Such other grounds as appear appropriate to the Commission. 6 The appellant was charged that it failed to ensure the health, safety and welfare at work of all of its employees, in particular Mr Peter Grech. A full description of the offence was specified in the amended information and summons as follows: On the said date, at the said site the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, and in particular Peter Grech in that it failed to provide and maintain a safe system of work for removing jammed products including cardboard from a Bailey brand honeycomb door manufacturing machine; failed to have adequate training, instructions and supervision to its employees so as to ensure a safe system of work was implemented in removing jammed products including cardboard from a Bailey brand honeycomb door manufacturing machine; failed to provide and maintain plant namely a Bailey brand door honeycomb manufacturing machine that was safe and without risks to health and in particular failed to have adequate isolation procedures, failed to carry out appropriate risk analysis on the machine, failed to ensure that all dangerous parts of the machine were adequately guarded once the hinged door was opened so as to prevent access to the guillotine area. 7 In essence, there were three aspects of the detriment to safety affecting the employees of the appellant in this case:

1. A failure to provide and maintain a safe system of work. The appellant conceded that the failure constituted a failure to provide sufficient layers of safety: see WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 429. In particular, there was a failure to provide a fail-safe system which would automatically deactivate the machine in question when a guard was lifted. The appellant had in fact introduced those additional layers of safety after the accident, see Ferguson v Nelmac Pty Limited (1999) 92 IR 188. 2. A failure to provide adequate training, instruction and supervision. The appellant conceded it had failed to sufficiently provide updated training as to the safety system employed with the machine, particularly after a new guard system was fixed. 3. A failure to provide plant which was adequately safe for the purposes of the Occupational Health and Safety Act 1983. This detriment related to the matters raised in relation to the system failure. 8 The concessions as to the detriment to safety occasioned in the case were appropriately made in submissions by Mr M. Kimber of Senior Counsel, who appeared for the appellant with Mr R. Moore of counsel, in a most helpful submission. We would add that the detriments to safety in this matter also include, in our view, a failure to ensure that the procedures for safety provided by the appellant, such as they were, were properly adhered to by the employees. 9 The industrial magistrate was correct, in our view, in her assessment of the objective seriousness of the offence. The offence, in our view, was a serious one. 10 In addition to the detriments to safety referred to, we note four additional considerations going to the objective seriousness of the offence:

1. There is a requirement here for both general and specific deterrence. As to specific deterrence, we note the general use of machinery of this type and the need to put in place fail-safe systems to ensure the safety of employees. 2. It is important to stress that employers should actively seek out detriments to safety and remedy them. More training and the laying down of procedures may not be enough. 3. The risk of injury was foreseeable and capable of simple remedy. 4. The injury which had been suffered by the employee was serious - an indicative although not decisive factor. 11 These considerations tend to indicate the appropriateness of the penalty imposed in this case. However, the appellant raised a number of matters which are relevant to be taken into account in the assessment of penalty:

1. There are some features that reduce the objective seriousness of the offence, for example, this is not a case where there was no system of work but one where the system was inadequate in all the circumstances. 2. There were significant subjective features, not the least of which was the early plea of the appellant and its good record. Indeed we consider that the appellant had a record of good industrial citizenship. We are concerned that her Worship did not sufficiently allude to these factors. 12 This is a difficult matter to determine in relation to the question of leave. There is no significant issue of principle raised and the appeal is essentially one going to severity where there are clearly circumstances warranting a significant penalty. However, there are some aspects of the level of penalty given which raise concern, particularly in relation to the subjective features of the case. 13 We consider, on balance, that leave to appeal should be granted. It is unusual that leave would be given in an appeal going merely to the question of severity. However, allowing for the need for latitude in the assessment of the reasons required in the busy court of an industrial magistrate, there is such an absence of reasons as to important matters relating to sentencing in this matter as would warrant a grant of leave. 14 We note that the respondent made no specific submissions against the grant of leave. 15 We grant leave to appeal because of the matters which we have adverted to and which we will deal with shortly. We have decided that an appellable error has occurred. For the reasons earlier given, we consider that there are significant factors going to the objective seriousness of the offence and a need for deterrence having regard to the special features identified earlier. We accept in this regard the careful submissions put by Ms McDonald of counsel for the respondent that the extent of the reasons required in the decision of an industrial magistrate will vary in light of the nature of the proceedings, and the nature of the matter being decided. Nor will it be necessary to give detailed reasons to all factors and circumstances relating to a particular conclusion. 16 However, we are concerned that there are some factors relating to the objective seriousness of the offence which have not been sufficiently taken into account by the industrial magistrate. Perhaps more significantly, there are quite significant subjective features in this matter which appear to have not been taken into account or sufficiently taken into account. 17 We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area. We have accordingly reached the conclusion that in all the circumstances of this case the penalty was inappropriate and excessive. 18 We would not wish to be taken as indicating that accidents with machinery of this kind would be treated leniently by this Court. We agree with the industrial magistrate that modern technology, where available, should equip employers to provide fail-safe systems to avoid the crushing and cutting injuries of the kind which occurred here. 19 Further, we reiterate that the objective features of the case are of primary significance in sentencing: see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 475. 20 For those reasons, we have determined to uphold the appeal and fix a penalty. We order as follows:

1. Leave to appeal is granted. 2. The appeal is upheld. 3. The appellant is fined an amount of $15,000 in lieu of that imposed at first instance with a moiety thereof to the prosecutor. 4. The respondent shall pay the appellant's costs of the appeal as agreed or assessed.

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