Genner Constructions Pty Limited v Workcover Authority of New South Wales

APPELLANT: Mr R J Grady of counsel SOLICITOR: Peta Bollinger Solicitor

LEGAL REPRESENTATIVES: RESPONDENT: Mr P M Skinner of counsel SOLICITOR: Mr N A Correy Moray & Agnew Solicitors

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

FULL BENCH 1 CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J

MATTER No IRC 3129 of 2000 GENNER CONSTRUCTIONS PTY LIMITED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR GUILLARTE) Appeal against a Decision of Justice Kavanagh given on 6 June 2000 in Matters No. IRC 4898 and 4900 of 1998

JUDGMENT OF THE COURT [2001] NSWIRComm 267

Introduction 2 This is an appeal pursuant to s196 of the Industrial Relations Act 1996 and s5AA(1)(a) of the Criminal Appeal Act 1912 by Genner Constructions Pty Ltd ("the appellant") from two judgments of Kavanagh J. In a judgment delivered 23 February 2000, the appellant was found guilty of two breaches of s15(1) of the Occupational Health and Safety Act 1983 ("the Act"). Another three summonses were dismissed. After hearing submissions as to penalty, the trial judge delivered a further judgment on 6 June 2000 imposing a total fine of $65,000 in respect of both the offences. 3 The proceedings before the trial judge involved five summonses issued by Inspector Guillarte of the WorkCover Authority of New South Wales ("the respondent") against the appellant alleging offences under s15(1) of the Act. The summonses arose out of the same set of facts. The appellant was a roadworks and subdivision contractor and, on 13 September 1996, was undertaking a project to widen a portion of the eastern shoulder of Moss Vale Road, Burradoo. On that day, a number of heavy vehicles were due to arrive at the site in order to deposit roadfill gravel for use in the operation.

4 The appellant's usual practice in relation to the movement of vehicles onto and off a worksite was for them to enter and exit in accordance with the normal flow of traffic. Mr Peter Genner, the director of the appellant, visited the site on the evening before the accident and directed that road work signs be erected and paint marks be placed on the road. He discussed these procedures with Mr Kenneth Ingram, a leading hand employed by the appellant who was to supervise the operation. It was envisaged that the normal practice of vehicles entering the site with the flow of traffic would be adopted.

5 However, on the day of the accident, the appellant's sub-contractor, Mr Keith Holzigal (a self-employed grader operator) who was also working at the site, decided to alter this procedure by directing the vehicles, using industry understood hand signals, to cross the traffic flow. Mr Holzigal, apparently in consultation with Mr Ingram, decided this alteration in normal procedure was necessary as a result of a high wind which caused spray from the gravel when the trucks tipped their load. Mr Holzigal determined that a flag person was not warranted due to the amount of traffic and the fact that there was good visibility down the road.

6 Whilst at the eastern extremity of the southbound lane, Mr Ingram was struck and run down by a truck exiting the site after depositing a load of gravel. Mr Ingram sustained fatal injuries as a result. It is not completely clear what the deceased was doing at the time of the accident. The trial judge concluded that it was likely Mr Ingram had been hammering down a witches hat which had become dislodged, or had just completed that task, when he was struck. Evidence was given that the truck in question was equipped with a bug deflector mounted on the engine bonnet that created a 19 metre blind spot at the front of the vehicle.

7 The five summonses charged that the appellant failed to provide a system of work, maintain a system of work and provide adequate training, appropriate supervision and proper instruction as may be necessary to ensure the health and safety at work of its employees. All five summonses were particularised so as to refer to the alleged failure of the appellant to ensure the health and safety of its employees with regard to vehicular movements to and from the worksite. The Decision Appealed From Finding of Guilt

8 The trial judge found there was in place a proper procedure to bring the trucks into the site with the flow of traffic. Her Honour stated that, as a result of the warning signs in place, the visit of Mr Genner to the site and the placement of the witches hats to delineate the worksite, the system would have been safe had it not been altered. In her Honour's view it was the decision to modify the normal procedure and bring the trucks into the site across the traffic that created the risks to safety which ultimately resulted in the deceased being killed. Her Honour found that Mr Holzigal assumed control of the site and took it upon himself to determine how the drivers were to access the site. Once this unsafe system of work was determined, all persons on the site were exposed to severe risk as they went about their normal tasks. In this regard, her Honour held: 59 I am satisfied from the state of the evidence that it was company policy for the drivers to enter worksites with the flow of traffic. From the weight of the evidence and given the fact the site was visited by Mr Genner the day before the accident I am persuaded there was in place a proper procedure to bring the trucks into the site with the flow of traffic. This procedure was altered on the day of the accident because it was a very windy day and Mr Holzigal determined it would be safer, and at least less inconvenient in regard to the job he had to perform, to bring the drivers across the traffic. It was arising out of this determination of Mr Holzigal that the risks to safety occurred and Mr Ingram lost his life.

60 The Court finds there is evidence sufficient to support the proposition that the system in place was for the trucks to approach the work site in the direction of the traffic. The type and location of the warning signs put out at the site; the visit of Mr Genner to the site with Mr Ingram to plan this placement and the placement of the witches hats on the road edge to delineate the worksite are all persuasive pieces of evidence. The signage, while correct, was signage in support of traffic coming on to the site with the line of traffic. I accept Mr Genner's proposition that there was a system of work in place in relation to the movement of trucks onto and off the worksite that would have been safe had it not been varied. However, this finding does not dismiss all charges laid against the corporation.

9 The trial judge observed that a system of work that required large trucks to complete a U-turn across traffic was not safe and that a worker who was required to work on the roadside should be protected by the use of the "buddy" system. Her Honour further observed that it was disturbing there were no procedures put in place by the truck drivers to address the dangers created by the substantial blind spot on the vehicles. Her Honour suggested that, at the very least, the driver should walk to the front of the truck to see if the blind spot was clear before putting the truck into motion. However, her Honour noted that those risks to safety were not relevant to the charges as particularised which limited the offences to the movement of vehicles onto and off the site.

10 In relation to the training received by Mr Ingram, her Honour noted that the appellant relied upon the "on the job" training given to Mr Ingram and had submitted "on-the-job" training was the best type of training. Her Honour rejected this submission and concluded: 68 In the case of an unskilled or semi-skilled worker such as Mr Ingram, I reject this submission. While nothing is as effective as a one-on-one instruction there was no evidence of any training programme on safety awareness formalised by the defendant during Mr Ingram's long employment. Mr Genner says he gave safety training on a one-on-one instruction with Mr Ingram while on the job over many years. He relies specifically on the instruction he gave on the site on the day before the accident to Mr Ingram. Further, Mr Genner was unable to produce any document of the defendant addressing safety procedures either directed to general site safety or task specific procedures. 11 The trial judge dismissed the charge that the appellant had failed to provide a safe system of work and concluded: 75 I am not persuaded, on the onus, that the prosecutor has proven beyond reasonable doubt that there was not in place a safe system of work for the conducting of road works that was safe and without risk to health by ensuring appropriate control of all vehicular movements to and from the site. There is much in this system of work adopted by the corporation, on close analysis, that was unsafe such as requiring heavy loaded vehicles to do U-turns on busy roads. However, the summons limits the charge to the vehicle movements to and from the worksite. I am satisfied as to that aspect of this system of work there was a safe procedure in place.

76 I am persuaded had the system of work in place been conducted in accordance with the procedures established by Mr Genner, there would have been a safe access and egress from this worksite without risk to the health and safety of Mr Ingram.

12 Her Honour further found that the system of work had been properly maintained by the appellant and found: 78 I am satisfied the defendant did continue to maintain the system of work for carrying out road work construction in the control of all vehicular movements from the worksite. From Mr Genner's visitation to the site the day before the accident and the delivery of signage to the worksite both the evening before and in the early morning on the day of the accident, there is before the court a clear indication that not only was there in place a safe system of work for the entrance and exit of vehicles but this system continued to be maintained to a rigorous standard. 13 As to the charge brought against the appellant in relation to the adequacy of supervision afforded to its employees at the time of the incident, her Honour also dismissed that charge. The court found: 80 I am persuaded that the defendant did provide the appropriate supervision for carrying out the road works construction. I am persuaded that had the work been properly conducted it would have been safe and without risk to health. The fact is Mr Genner went out with Mr Ingram the afternoon before the task to discuss the work procedures to be followed. Mr Genner not only attended at the work site with Mr Ingram but marked the site with Mr Ingram. Mr Genner also provided the proper equipment including road signage and witches hats. Such evidence persuades the Court that the appropriate supervision was conducted by Mr Genner. 14 The trial judge found the appellant guilty of two charges, namely, the charges relating to the training and instruction of Mr Ingram with regard to the control of vehicular movements on the worksite. It was found there was no formalised system of training in relation to Mr Ingram's capability to handle changes in the standard policy. Her Honour stated: 84 The entire environment of this work site reflects the court's concern that Mr Ingram was not properly trained in the procedures to be followed when there was an alteration of work procedures as to the access and exit of vehicles to the site. There is a foreseeable and obvious risk that windy conditions could affect road site works which involve the use of loose materials. There was no evidence before the Court that here was in place any proper training given to Mr Ingram once the established procedure was varied. 15 Her Honour also found that Mr Ingram, as an employee of the appellant, was not properly trained in how to deal with the problem of the usurping of control by Mr Holzigal, a sub-contractor. Despite Mr Holzigal's status as a sub-contractor, her Honour concluded that Mr Holzigal assumed control of the site. As a company which engaged sub-contractors, the appellant had a responsibility to ensure those sub-contractors were properly instructed in procedures to ensure employees' safety.

16 Further, it was found the appellant failed to properly instruct other persons who were integral to the system of work. In this regard, her Honour referred to Mr Duff, the quarry dispatcher, who claimed that he did not receive instructions as to how the site should be entered. Her Honour accepted the evidence of Mr Duff in that regard. Whilst Mr Genner's evidence was that the standard practice of the drivers was to approach from the north, her Honour found that both the drivers (Mr Oelsen and Mr Smith) did not concede it was unusual to enter the worksite across the flow of traffic. Her Honour noted that no instructions were given to the drivers about access and exit procedures on the site. This also indicated a failure to properly instruct persons who were integral to the appellant's system of work. 17 Her Honour also held that for a system of work to be truly safe it must provide for situations where variation may be required. Mr Genner should have had formal training as to such systems; "on the job" training was not enough. Despite Mr Genner's high regard for Mr Ingram, and observations of others as to Mr Ingram's competence and experience, the deceased was a "semi-skilled" or "unskilled" worker.' Her Honour found: 92 The obligations of an employer under s15(1) of the Act is to ensure the health, safety and welfare at work of its employees in this case, Mr Ingram. The failure by the defendant to properly train or to properly instruct Mr Ingram, its employee, and to properly instruct bot the drivers, Mr Smith and Mr Olesen and the grader driver, Mr Holzigal on the safe system of access and exit to this worksite seriously contributed to the circumstances leading to Mr Ingram's death.

93 The evidence makes clear any training or instruction given to Mr Ingram was always verbal. Although I accept on the balance of the evidence that there was a safe system in place related to the vehicle entrance and exit from this worksite, I do not accept that the appropriate training and instruction on site safety related to vehicle access and exit has ever been provided by the defendant company to Mr Ingram or the appropriate instruction was ever given to other workers on the site. Such neglect of a basic responsibility of an employer to properly train and instruct on safe working was a significant contributing factor to this tragic accident which cost Mr Ingram, from all the evidence a fine, hard working man, his life. 18 The trial judge further found that the appellant had failed to prove under s53 of the Act that the accident occurred because it was impractical for the appellant to make provision for the appropriate training of its employees and the appropriate instruction of all workers on the site. Penalty 19 After referring to the relevant principles set out by the Full Bench in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Insp Ch'ng) (1990) 90 IR 464, her Honour determined that the nature and quality of the offences was not the most serious in character. In support of this conclusion she cited the system of work in place at the worksite, the supervision provided by the appellant and "on-the-job" training of workers. It was also observed: 5 … However, there is an absolute duty borne by this employer to ensure its worker on site was sufficiently trained and instructed to ensure he did not, with abandon, change and established system of work that, had it been followed, would have provided safe working. The circumstances reveal this as an offence where, with the appropriate training and instruction, the risk to injury could have been avoided. The circumstances reveal a sub-contractor imposed his will over an employee to bring about the risk to safety on this site. The line of authority on this worksite was not well determined and so should have been better determined so the defendant company's worker was properly trained and instructed as to procedures if circumstances required a change to the safe system in place. There was no defined policy if circumstances required an alteration to work procedures (in the case because of wind) and no defined line of authority on the worksite. Mr Ingram, the deceased, was therefore not instructed or properly trained as to the entrance and exit of vehicles on to this worksite.

20 In considering the factors subjective to the appellant, her Honour took into account that it had been working in an inherently dangerous industry for a period of 20 years and had no prior convictions. It was noted the appellant had refined its systems of work after the accident, producing a kit for sub-contractors on work safety and ensuring that a line of command was clearly defined. Further, her Honour found the appellant had introduced a new system of training which included safety awareness, traffic control, work in confined spaces and construction work safety. New employees were to undergo site specific training provided by supervisors, as well as general training provided by the appellant. The appellant had also retained an occupational health and safety consultant. Her Honour also accepted the appellant had expressed genuine contrition. 21 The trial judge rejected a submission by the appellant that s10 of the Crimes (Sentencing Procedure) Act 1999 (formerly s556A of the Crimes Act 1900 (NSW)) should apply. In considering this to be inappropriate, and after citing relevant authority, her Honour identified that the appellant conducted a worksite over which it had full control, yet it failed to properly train and instruct its employee as to vehicle movement. As a result, a foreseeable injury occurred which reflected "a serious neglect of [the] absolute duty on the part of the employer." 22 In sentencing the appellant, her Honour applied the principle of totality for the two offences and imposed a fine of $65,000. The Legislation 23 The charges were bought pursuant to s15 of the Act which provides:

15 Employers to ensure health, safety and welfare of their employees

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health,

(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,

(d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks,

(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

(f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

(3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer.

(4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 24 In the case of a prosecution bought under s15(1) before a judge of the Commission in Court Session, the maximum penalty which may be imposed is the maximum penalty for the offence: s47(3) of the Act. With respect to these offences, the maximum penalty was $550,000. 25 The appellant raised a defence under s53 of the Act. That section is in the following terms: 53 Defence

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

Nature of the Appeal 26 An appeal in respect of criminal proceedings taken before a single member of the Commission in Court Session may be brought before the Full Bench of the Commission in Court Session pursuant to s196 of the Industrial Relations Act. That section provides: 196 Appeals from and references by members of Commission in criminal proceedings

(1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.

(2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.

(3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912 : (a) to the Court of Criminal Appeal - is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court - is taken to be a reference to the Commission in Court Session, and (c) to rules - is taken to be a reference to rules of the Commission, and (d) to the Attorney General - is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions - is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar - is taken to be a reference to the Industrial Registrar.

(4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs. 27 It will be observed that the Criminal Appeal Act applies with respect to these proceedings. The relevant provision of that Act is s5AA(1)(a). The proper approach to be adopted in appeals brought pursuant to s196 of the Industrial Relations Act and s5AA of the Criminal Appeal Act is well settled: see Capral Aluminium Limited v Workcover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at 38-39, Swift Placements Pty Limited v Workcover Authority of New South Wales (Inspector May) (2000) 96 IR 69 at 70-71, Fletcher Construction Australia Limited v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 75-77 and Warman International Ltd v Workcover Authority of New South Wales (1998) 80 IR 326 at 338.

28 That approach provides that the present appeal is brought as of right and there is no need to seek leave to appeal: s5AA(1) of the Criminal Appeal Act and s196 of the Industrial Relations Act. The appeal comes before the Full Bench by way of rehearing, although the Full Bench does not undertake a hearing de novo. The Court must consider afresh the ultimate issue and independently determine the matter on the evidence at first instance, plus any fresh, additional or substituted evidence adduced on appeal: s5AA(3A) of the Criminal Appeal Act. However, consideration of the manner in which the trial judge approached the questions to be determined may provide a useful analytic device when approaching the matter at appellate level: see Capral at 39 and Fletcher Construction at 81. Having heard the matter the Court "may confirm the determination made by the [Court] in its summary jurisdiction or may order that the determination made by the [Court] in its summary jurisdiction be vacated and make any determination that the [Court] in its summary jurisdiction could have made on the evidence heard": see s5AA(4) of the Criminal Appeal Act.

29 During proceedings, the appellant tendered a statement made by Mr Holzigal to police on 1 October 1996 as new evidence on the appeal. It was submitted by the appellant that special grounds existed to justify the admission of new evidence on the appeal. The statement was said to be generally relevant to events on the day of the incident as well as specifically whether Mr Ingram communicated instructions to Mr Holzigal. The appellant submitted the statement should have been tendered by the prosecutor in the proceedings at first instance. The respondent did not oppose admission of the statement on the grounds that it sought to remove any allegation of unfairness. The Full Bench determined that s5AA(3A) of the Criminal Appeal Act applied to these proceedings and the Court had a discretion to grant leave to adduce fresh, additional or substituted evidence if satisfied there were special grounds for doing so. Having considered the nature of the evidence, the Full Bench granted leave for the statement to be admitted having regard to the consent of the respondent, and on the basis of the allegation of a miscarriage of justice. The appellant's Submissions 30 The appellant's grounds of appeal mirrored the questions it submitted were raised by the appeal. Those grounds were directed to the findings at first instance concerning instruction and training. It was submitted her Honour erred in making the following findings:

1. the appellant failed to properly instruct and train the deceased and other workers as to the movement of vehicles to and from the worksite; 2. the appellant failed to properly instruct and train the deceased as to the steps to be taken in the event of another worker usurping the deceased's control of the worksite; 3. the appellant failed to properly instruct and train the deceased in relation to the alteration of the appellant's standard procedure for the movement of vehicles to and from the site.

31 The appellant argued the decision at first instance was "against both the substance and weight of the evidence" and submitted her Honour erred in finding that the appellant did not make out a defence pursuant to s53 of the Act.

32 Mr R J Grady, of counsel, who appeared for the appellant, submitted that her Honour erred in finding Mr Ingram was not properly trained. It was submitted the appellant had an established policy relating to vehicle movements that required vehicles enter and exit the worksite in the direction of traffic flow. Where an alternative was necessary, the procedure required speed reductions and traffic controllers to be utilised. The appellant submitted that the policy was demonstrated by the evidence of Mr Genner, which was unchallenged, and it was emphasised that the policy was "long-entrenched". 33 Mr Genner continually engaged in "on-the-job" training with Mr Ingram. The appellant submitted that Mr Ingram had been associated with the company for some 15 years and during that time Mr Genner had personally instructed him as to methods of directing traffic. The training imparted to Mr Ingram did not take the form of explicit daily instruction, but rather "simple but effective standard and alternative procedures for the entry and exit of heavy vehicles at its roadside worksites." The appellant contended that "on-the-job" training was the most effective form of training. Furthermore, the appellant submitted that Mr Ingram, being a man of limited education and "unskilled", received greater benefits from "on-the-job" training as opposed to "formalised lecture training, and the provision of books or documents." 34 The appellant submitted that Mr Ingram was a competent employee who was capable to carry out his duties. Specifically, it was put that throughout their working relationship Mr Genner had always had faith in Mr Ingram as a competent and capable employee. Mr Genner gave evidence he had observed Mr Ingram directing lorries onto and off worksites over many years and considered him to be a very good supervisor. This evidence was supported, it was submitted, by the evidence of other persons who had experience in the field of roadside construction and had worked with Mr Ingram.

35 The appellant also contended that, as the trial judge found the appellant's system of work relating to the standard procedure to be safe, it must follow that Mr Ingram was properly trained. It was submitted her Honour found that had the worksite been conducted in accordance with the procedures established by the appellant, then the worksite would have been safe. Her Honour also found that the system of work had been maintained to a rigorous standard. The only person conducting the worksite was Mr Ingram and the only reasonable inference was that he was properly trained in the standard procedures. It was further submitted that if it was accepted the appellant adequately trained Mr Ingram in standard procedures then it followed he was trained in alternative procedures.

36 The appellant also submitted that her Honour erred in finding the appellant failed to provide appropriate instruction to the deceased and other workers with respect to vehicle access to and exit from the worksite. The appellant submitted that Mr Genner visited the site with Mr Ingram the day before the accident for the purpose of discussing safety arrangements. Mr Genner had instructed that vehicles were to enter with the flow of traffic. Appropriate warning signs were put in place. The appellant submitted there was sufficient evidence to conclude that Mr Ingram had passed on the instructions to Mr Holzigal in relation to the setting up of the site and the manner in which the trucks were to enter and exit the site. In this regard, the appellant also relied upon the statement made by Mr Holzgial to police following the accident. It was submitted that Mr Holzigal had stated Mr Ingram had indicated to him that Mr Genner had visited the site and indicated what was required. 37 The appellant submitted that Mr Ingram was a competent employee and on the day of the accident was acting as the supervisor of the site. The appellant was entitled to rely on Mr Ingram to comply with the established procedures and to expect he would properly instruct the only other permanent worker on the site concerning the appellant's work and safety requirements. The appellant contended that Mr Holzigal knew of the alternative procedure but made a positive decision to disregard it. The accident was, therefore, a direct result of Mr Holzigal's failure to follow the alternative procedure.

38 In relation to the truck drivers, it was submitted that Mr Genner gave instructions as to entry and exit procedures to the quarry dispatcher, Mr Duff. Mr Duff disputed he had been given such instructions. The trial judge rejected Mr Genner's evidence that he gave instructions to Mr Duff to the effect that the trucks were to enter the site in the direction of the traffic flow. The appellant submitted that Mr Genner should be believed as to this conversation as he was a credible witness who, throughout the proceedings, withstood attacks upon his credibility. It was contended the drivers were aware of the usual policy for trucks to enter a worksite with the flow of traffic and drivers did not ordinarily receive entry instructions until arrival at a site.

39 In any event, the appellant submitted the accident resulted from an inadvertent or casual failure on the part of Mr Ingram and Mr Holzigal to properly observe the appellant's safe system of work. It was contended what most likely occurred was that, in familiarity with his employment, Mr Ingram disregarded his years of training and instruction concerning the safe entry and exit of trucks at roadside worksites in order to complete the job as quickly as possible. It was submitted that those failings on the part of Mr Ingram and Mr Holzigal did not render the appellant liable for a breach under s15(1) of the Act: see Collins v State Rail Authority of NSW (1986) 5 NSWLR 209 at 215 and Inspector Davies v Prospect Electricity (unreported, Fisher CJ, Matter No. CT91/747, 9 November 1992).

40 For the same reasons, it was submitted the appellant had made out a defence under s53 of the Act because the accident was due to causes over which the appellant had no control and in respect of which it was impracticable to have made provision. In this regard, the appellant cited the judgment of the Full Bench of the former Commission in Court Session in State Rail Authority v Dawson (1990) 37 IR 110 at 126. It was submitted it followed from the finding of the trial judge, to the effect that the site was safe and without risks to health, that all persons on the site were adequately trained and instructed in all matters affecting the safety of the site.

41 The appellant submitted that the penalty imposed by the trial judge was manifestly excessive, particularly as it had in place a standard procedure for the entry to and exit from its worksites. Also, the finding at first instance that the appellant had put in place a safe system of work and had rigorously maintained it supported a lower penalty. Her Honour's finding that all appropriate equipment and signage had been provided was also significant. It was put that the appellant could not have expected Mr Ingram or Mr Holzigal to depart from this system of work and it was entitled to rely upon those persons to act as they had previously. The experience of Mr Ingram and Mr Holzigal was inconsistent with their alteration of the procedure and such conduct was out of character. It was, therefore, the errors of others, not the appellant, which led to the accident.

42 Reference was made to the judgment of Cahill J, Vice-President, in WorkCover Authority of NSW (Inspector Mauger) v Pioneer Road Services Pty Ltd (unreported, IRC 97/1112, 3 September 1998). In that case, his Honour found there had been a failure by employees to observe the defendant's safety procedures so that the accident would not have occurred had those procedures been strictly followed. His Honour apparently took that into account when determining to impose a penalty at the lower end of the scale. In the same way, the approach to sentencing here should be such as to reflect the "appellant's true culpability."

43 The appellant noted that no prosecutions were instigated against either Mr Holzigal or the driver of the truck which struck Mr Ingram, namely, Mr Oelsen. The appellant contended this case should be likened to Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312, where it was said that the absence of prosecution of other parties on which the defendant relied was relevant to the sentence imposed. 44 In mitigation of penalty, the appellant submitted it had no prior summonses or convictions, despite 20 years of operation involving the constant use and movement of trucks and heavy earthmoving equipment about busy worksite. The appellant also cited evidence by witnesses as to the competence and diligence of the appellant in relation to safety. The appellant did not plead guilty to the charges, but it was noted that three of the matters were dismissed at first instance. Further, the appellant had demonstrated genuine contrition and had put in place a number of safety procedures since the accident. The Respondent's Submissions Submissions as to liability 45 Mr P M Skinner of counsel, who appeared for the respondent, submitted that the appellant sought to draw a number of inferences from factual findings made by the trial judge as part of her reasoning process. In particular, reliance was placed on her Honour's finding that there was a system in place in relation to the movement of trucks onto and off the worksite that was safe. The respondent submitted those findings were made in the context of the summonses then before the Court and did not necessarily indicate there was objectively a safe system of work in place that was rigorously maintained and properly supervised. In any event, the respondent submitted the appeal was a rehearing on the evidence below so that the Full Bench was not obliged to accept the findings at first instance, but must determine afresh whether the appellant was guilty of the charges against it.

46 The respondent submitted the only rational inference that could be drawn from the evidence was that there was a failure in the training received by Mr Ingram. In particular, the respondent contended it was possible for the Court to draw the inference from what occurred that Mr Ingram was not adequately trained in relation to the alternative procedure which would have operated in the event it was not possible for the trucks to enter the site with the flow of the traffic. The evidence suggested the only training received by Mr Ingram was "on-the-job" training by Mr Genner over the years and there was no formality in or documentation of such training. The respondent supported the finding made by the trial judge that something more than informal, or "on-the-job" training was necessary in this case to ensure that the worksite was safe and without risks to health and safety. The training given was insufficient to enable Mr Ingram to deal with the changes in conditions on the day of the accident or the relationship with the sub-contractor, Mr Holzigal.

47 The respondent further submitted there were no appropriate or direct instructions given by the appellant which would have fulfilled its obligations under s15(1) of the Act. The respondent conceded that some instructions were given by Mr Genner to Mr Ingram the day prior to the accident but those instructions did not encompass a firm or even clear prohibition upon the procedure discussed being varied if the circumstances appeared to require. It was submitted there were no direct instructions given to Mr Holzigal which could have prevented the accident. In relation to the drivers, the respondent submitted the Full Bench should accept the finding of the trial judge that Mr Genner did not give an instruction as to entry and exit procedures to the quarry master, Mr Duff, as was claimed by Mr Genner. In this regard, her Honour's findings as to the credibility of Mr Genner should not be overturned.

48 The respondent supported findings at first instance that the system was unsafe because it did not sufficiently take into account variations that may be required in the systems of work. Mr Genner had not trained Mr Ingram in lines of command or how to deal with changed circumstances at the worksite when necessary. Even accepting that Mr Ingram was trained in alternative procedures, it was submitted the training was simply not enough. 49 The respondent submitted that it was open, on the evidence, to reject the defence advanced by the appellant pursuant to s53 of the Act. The facts were that no system was in place to prevent what happened. There was no reason advanced by the appellant as to why such a system was impractical or that the incident was unforeseeable. The altered procedure was unsafe and the workers were exposed to risks.

50 The respondent submitted that the objective seriousness of the offence was high. A very dangerous situation at the worksite was not recognised by the appellant's employee or by the sub-contractor; an employee was killed as a result. The respondent emphasised the inadequacies of the training and instruction provided by the appellant in that Mr Ingram had never received any formal, documented training during all the years he had been employed by the appellant. Those were matters going to the seriousness of the offence and the penalty which properly should be imposed.

51 The respondent noted that the appellant defended the charges vigorously and was not entitled to any discount in sentence as a result of a plea of guilty. It was contended that the fact the remaining three charges were dismissed at first instance did not avail the appellant in relation to sentencing for the charges of which it was convicted. The respondent submitted that the penalty imposed was appropriate or possibly lenient.

52 The appellant was found guilty of two of the charges brought against it. The charge in Matter No IRC 4898 of 1998 was: On 13 September 1996 at a roadworks construction site on the eastern shoulder and verge of Moss Vale Road, Burradoo, in the state of NSW approximately 100 metres south of Eridge Park Road, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all of its employees and in particular Kenneth Edward Ingram contrary to s15(1) of the Occupational Health and Safety Act 1983 in that it failed to provide such training at the aforesaid roadworks constructions site as may be necessary to ensure the health and safety at work of the defendant's employees, more particularly the said Kenneth Edward Ingram.

The particulars of the charge are: 1. The defendant at all material times employed Kenneth Edward Ingram. 2. The defendant failed to provide such training at the aforesaid roadworks construction site as may be necessary to ensure the health and safety at work of its employees. 3. The defendant failed to provide appropriate training to control all vehicular movements to and from the worksite. 4. Kenneth Ingram suffered fatal injuries when struck by vehicle registration number LUT 601 and tailer registration number G81923 whilst working at the aforesaid construction site.

53 The charge in Matter No IRC 4900 of 1998 was: On 13 September 1996 at a roadworks construction site on the eastern shoulder and verge of Moss Vale Road, Burradoo, in the state of NSW approximately 100 metres south of Eridge Park Road, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all of its employees and in particular Kenneth Edward Ingram contrary to s15(1) of the Occupational Health and Safety Act 1983 in that it failed to provide such instruction at the aforesaid roadworks constructions site as may be necessary to ensure the health and safety at work of the defendant's employees, more particularly the said Kenneth Edward Ingram.

The particulars of the charge are: 1. The defendant at all material times employed Kenneth Edward Ingram. 2. The defendant failed to provide such instruction at the aforesaid roadworks construction site as may be necessary to ensure the health and safety at work of its employees. 3. The defendant failed to provide instructions to ensure appropriate control of all vehicular movements to and from the worksite. 4. Kenneth Ingram suffered fatal injuries when struck by vehicle registration number LUT 601 and tailer registration number G81923 whilst working at the aforesaid construction site. 54 The complete terms of the charges have been set out in light of the way in which the appeal has been argued. The appeal was brought only against the convictions recorded as to the two charges, and the sentences imposed following conviction. The appeal is to be determined by way of rehearing on the evidence at first instance and the additional evidence adduced in the appeal. As such, the major issue on appeal is whether the Full Bench is satisfied beyond reasonable doubt that the appellant was guilty of the two offences for which it was convicted. That is, whether the appellant failed to ensure the health, safety and welfare at work of all of its employees in that it failed to provide such training and instruction as was necessary to ensure the safety at work of the defendant's employees, particularly Mr Ingram. The question of whether the system of work put in place by the appellant was otherwise generally safe and without risks to the health, safety and welfare of its employees does not arise for direct consideration.

55 When addressing these questions, the Full Bench is not bound by the factual findings made by the trial judge at first instance. It is for the Full Bench to consider the evidence afresh and come to its own view. It is, of course, appropriate for regard to be given to factual findings made by the trial judge, particularly where those findings are assisted by the direct observation of witnesses giving evidence or based on findings of credibility: see, for example, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, and cf State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 160 ALR 588 at 620. See also as to an appellate court's capacity to draw appropriate inferences from undisputed facts or those established by the findings of the trial judge, Warren v Coombes (1978) 142 CLR 531 at 551; Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59 and Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 43; and in a case where an appellate court is required to undertake a rehearing: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2000) 105 IR 81 at 93. 56 Following this approach, it is necessary to consider first whether, on the evidence, the appellant failed to provide such training at the worksite as was necessary to ensure the health and safety at work of its employees, more particularly the Mr Ingram. This charge was framed so as to refer to the failure of the appellant to provide training generally and during submissions the respondent appeared to refer to the failure of the appellant to provide training to both Mr Ingram and Mr Holzigal. However, we do not understand the charge to refer to an obligation upon the appellant to provide training to Mr Holzigal who was not an employee of the appellant. Whilst an employer may, in some circumstances, be obliged to ensure that all persons working at a particular site are adequately trained, in this case we are satisfied that the appellant's responsibility concerning Mr Holzigal is adequately dealt with by the charge relating to the alleged failure of the appellant to provide adequate instruction.

57 The appellant pointed to the evidence of Mr Genner to the effect that he had provided regular "on-the-job" training and instruction to Mr Ingram over many years. The evidence of Mr Genner was that this training encompassed issues of safety, including methods of directing vehicles entering and leaving worksites. Inspector Chadwick of the WorkCover Authority and Mr Johnson, an expert called by the appellant in the proceedings at first instance, agreed that "on-the-job" training can be a very effective method of training workers. However, whilst such training may, with respect to particular work, be sufficient to ensure a safe workplace, there will be many cases in which more detailed, comprehensive or systematic training and instruction will be required: see, for example, WorkCover Authority of New South Wales (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 at [24]-[25] and WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 at [71].

58 The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education).

59 In this case, we are satisfied beyond reasonable doubt that the training provided to Mr Ingram was not adequate to ensure he was not exposed to risks to his health and safety in relation to the control of vehicular movements onto and off the worksite. The training received by Mr Ingram over the years he had been working for the appellant was solely informal, ad hoc training and provided directly by Mr Genner. The training was not documented and the appellant's procedure for controlling vehicles entering and leaving a worksite were not recorded or refined. In our view, it is proper to conclude there was not sufficiently systematic or comprehensive training so as to ensure that Mr Ingram, who was left in control of the worksite, was sufficiently trained to react to changing circumstances and at the same time to ensure the site remained safe.

60 A question was raised during submissions concerning the onus of proof on the prosecution to prove the absence of adequate training. The respondent conceded there were difficulties in seeking to prove a negative. Mr Skinner, at one point, suggested this case raised similar considerations to the decision of the High Court in Weissensteiner v The Queen (1993) 178 CLR 217, in that the appellant failed to give evidence concerning matters which were peculiarly within its knowledge. We do not consider that it is necessary to approach this case in that way. Mr Genner gave evidence in the proceedings at first instance and was questioned about the training and instruction received by Mr Ingram. He stated he had personally instructed and trained Mr Ingram in the work. That included issues related to traffic movement, although Mr Ingram had not obtained a traffic control certificate. We consider that that evidence, unchallenged as it was, sufficiently demonstrated that the training received by Mr Ingram was limited to informal "on-the-job" training.

61 We also consider that it is properly open to conclude the inadequacy of the training received by Mr Ingram from the evidence of his actions on the day of the accident. It was contended by the appellant that the actions constituted an inadvertent or casual failure to observe the appellant's safe system of work and that Mr Ingram disregarded his many years of training. We do not consider that this view of the evidence is sustainable. Mr Genner gave evidence that Mr Ingram was a competence and diligent employee and that view was supported by another witness, Mr Currall, who had worked with Mr Ingram on a number of worksites. We consider it is not possible to infer that Mr Ingram simply disregarded the dangers created when he acquiesced in the alteration to the working arrangements. The rational conclusion from the evidence was that Mr Ingram did not fully envisage the risks created by altering the vehicle movements by reason of a failure to adequately train him in relation to the safe operation of the worksite.

62 It is not necessary to speculate as to the type of training which would have been necessary to ensure that the worksite was safe: see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432 at 451 and WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 257. However, it is relevant to observe that Mr Ingram was left in sole control of the worksite and Mr Genner regarded him as the supervisor of the site. Where a worker is left in control of a worksite and necessarily given authority to alter work arrangements should circumstances require, it is less likely that informal, "on-the-job" training will, in itself, be sufficient. Whilst the lack of documented procedures will not always indicate a deficiency in the training provided by an employer it may, in some cases, constitute an indication the training was less comprehensive or systematic than was required. Where a worker may be required to autonomously adopt alternative work procedures in response to changing circumstances and those alterations may present serious risks to that worker or others, it would be prudent, at the very least, to ensure that "on-the-job" training was formalised and documented with a view to ensuring a comprehensive coverage of all facets of the work and full appreciation of any safety risks by the employee concerned.

63 We are also satisfied beyond reasonable doubt that the appellant failed to provide such instruction in relation to the movements of vehicles onto and off the worksite as was necessary to ensure the health and safety at work of Mr Ingram. Mr Genner gave evidence he visited the worksite with Mr Ingram the day before the accident and discussed the operation with him. We are satisfied that Mr Genner instructed Mr Ingram concerning how the operation should be conducted, including the placement of signs and witches hats. Mr Genner instructed Mr Ingram that the trucks were to enter the site with the flow of traffic and the signage was erected to cater for that eventuality. Mr Genner gave evidence he would have instructed the alternative procedures to be put in place had it been envisaged that the trucks would enter the site across the flow of traffic. This would have included putting in place flagmen and a traffic speed restriction. No detailed instructions were given to Mr Ingram in relation to what should be done if it was necessary to alter the procedures. Although Mr Genner indicated that Mr Ingram was aware of the alternative arrangements, we are satisfied that the instruction given to him was inadequate having regard to the failure to expressly dictate, in relation to this job or generally, what should occur if it was necessary to alter the proposed work procedure.

64 It was not contested that Mr Genner failed to give any direct instructions to the appellant's sub-contractor, Mr Holzigal, in relation to the operation of the worksite on that day. The evidence tendered by the appellant on appeal was said to indicate Mr Ingram passed on Mr Genner's instructions to Mr Holzigal on the morning of the accident. We are satisfied that the evidence indicated that Mr Ingram discussed with Mr Holzigal, to some extent, the arrangements to be put in place as instructed by Mr Genner but this did not eliminate the consideration that no direct instructions were given to Mr Holzigal; the evidence suggested that Mr Holzigal played a significant role in determining whether to alter the work procedures and in assessing the risks likely to be caused by those alterations. This is substantiated by the statement to the police by Mr Holzigal, which was admitted before the Full Bench on the application of the applicant.

65 The appellant contended it was entitled to rely on Mr Ingram, as a supervisor, to control the site and pass on instructions to other workers on the site. However, having regard to the finding that Mr Ingram was not appropriately trained to deal with alterations in the usual procedures, the failure to provide any instruction to the other workers employed at the site is of significance. Whilst Mr Holzigal decided it was necessary to alter the working arrangements, he decided that the flow of traffic did not warrant additional safety procedures being put in place. Specifically, he determined that flagmen were not necessary. In those circumstances, if adequate instruction had been given to either Mr Ingram or Mr Holzigal as to the safety steps necessary should trucks be brought onto the site against the flow of traffic, much of the risk to safety would have been obviated. As a result, we find that the lack of any instruction being given to Mr Holzigal further contributed to the failure of the appellant to ensure that appropriate safety mechanisms were put in place on the day of the accident with respect to its employees.

66 An issue was raised in the proceedings below concerning whether Mr Genner instructed the truck drivers as to how they were to enter the worksite. Mr Genner gave evidence he had called Mr Duff from Exeter Quarries to arrange for roadfill gravel to be delivered to the site. It was Mr Genner's evidence that he indicated the trucks should approach the site from the north, meaning that the trucks would enter the site with the flow of traffic. Mr Duff did not recall this conversation and gave evidence that the instruction was not recorded on the quarry docket. In this respect, the trial judge rejected the evidence of Mr Genner. We do not consider it necessary to resolve this issue. It was clear that no direct instruction was given to the drivers except by Mr Holzigal when they reached the site; that seemed to be the procedure. As such, there was no direct failing in Mr Genner not directly instructing the drivers how to enter the site. It was the failure to adequately instruct Mr Ingram and Mr Holzigal which resulted in the risks to safety on the worksite.

67 We do not consider that the appellant has made out a defence under s53 of the Act. The appellant did not demonstrate that the commission of the offence was due to causes over which it had no control and against the happening of which it was impracticable to make provision. In this regard, the appellant contended the risk to safety resulted from a casual act of negligence by Mr Ingram and Mr Holzigal and relied on the following passage from the judgment of the Full Bench of the former Commission in Court Session in State Rail Authority v Dawson (at 126): … the facts well establish, on the probabilities, that the defendant laid down a safe and proper practice, and the evidence did not suggest that the defendant had failed to use due diligence to see that the practice was observed. It seems to us to be established that the statutory defences available under s53 are both made out in the situation of a casual failure by a supervisor to perform the duties and functions laid down by the employer.

Similar sentiments were expressed in relation to the failure of an employee to follow an established safe system of work in Inspector Davies v Prospect Electricity .

68 In WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd (No 1) at 259, it was stated that the practicability of adopting measures directed at addressing a particular detriment to safety required a balancing of the magnitude of the risk and the gravity of the harm likely to result with the sacrifice involved in the measures necessary for averting the risk. It was, furthermore, observed that it would not generally be practicable to take measures to guard against a detriment to safety that was not reasonably foreseeable. This approach was adopted by the Full Bench of this Court in Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Insp. Charles) (2000) 102 IR 57 at 82-83. It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.

69 However, we do not consider that the present is such a case. Having regard to the findings made in relation to the inadequacy of the training received by Mr Ingram and the instruction given to him and to Mr Holzigal on the day of the accident, it is not possible to conclude that the risks to safety were caused solely by the failure of the two workers to observe the appellant's ordinary procedures. The Act obliges employers not merely to establish safety procedures but also to ensure those procedures are sufficiently promulgated to its workers who are themselves adequately trained in their implementation. In light of the findings made in relation to the inadequacy of the training and instruction afforded by the appellant, we are not satisfied the appellant demonstrated on the probabilities, that it was not reasonably practicable to make provision for more detailed and thorough training and instruction for those working on its worksites. The s53 defence must fail.

70 In the result the appeals against the convictions recorded against the appellant by the trial judge in respect of each charge should be dismissed.

Penalty 71 In the case of an appeal by way of rehearing the Full Bench must itself determine the appropriate penalty on the basis of the material before the trial judge at first instance, including any fresh evidence admitted by leave on appeal: see Capral at 67-68 and Camileri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 703. Nonetheless, it will usually be of assistance to have regard to the manner in which the question of sentence was dealt with by the trial judge below so as to assist the appellate court in determining an appropriate penalty by a process of review of a reasoned decision. We propose to do so in the present case.

72 The offences in this case arose from a serious accident which resulted in the tragic death of an experienced and competent worker. Offences under the Act are committed as a result of the failure to ensure that workers and others are not exposed to risks to their health, safety and welfare. As such, the gravity of the consequences of an accident does not, of itself, dictate the seriousness of an offence under the Act: see Lawrenson Diecasting at 476. However, the fact that a breach of the Act resulted in the death of a worker is an extremely serious matter that must be considered when assessing the culpability of the appellant: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT 90/1214, 30 June 1992). In Capral (at 66), for example, the Full Bench observed: 94 … The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.

73 In considering the qualitative nature and objective seriousness of the offence, we accept the appellant did have in place a standard procedure for vehicles to enter and exit its worksites and that extensive attention had been given to the need for the system of work to address safety concerns. We also find there was an alternative system which was to be adopted should it be necessary to alter the usual arrangements. This is not a case in which the employer had failed to pay any attention to the need to adopt a safe system of work. For this reason, we agree with the trial judge that these offences do not fall into the most serious category. Nonetheless, it has been found that the appellant provided inadequate training and instruction to Mr Ingram and Mr Holzigal. Where the worksite involved the movement of heavy vehicles onto and off the site on which people were working, the risk to safety which resulted was readily foreseeable. The degree of seriousness of the risk was demonstrated by the death of Mr Ingram.

74 In the determination of the appropriate sentence in this case, it is also necessary for weight to be attached to the need for general and specific deterrence: see WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 192-193 and Capral at 60. The sentence to be imposed must reflect the need for general deterrence in relation to offences under the Act. We specifically consider that the sentence imposed must demonstrate the need for effective safety procedures and constant vigilance in an industry, such as road construction, which presents inherent safety risks to workers. Notwithstanding the good record of the appellant and its general attitude to health and safety issues occasioned by its operations, we also consider that some weight must be given to the element of specific or personal deterrence. The obligations imposed by the Act require employers to adopt a pro-active approach to safety. Where an employer continues to conduct an operation which presents inherent risks to safety it is proper to have regard to the need to encourage a sufficient level of diligence in the future: see Capral at 61.

75 Certain subjective factors in favour of the appellant arise for consideration in the assessment of sentence. As has been mentioned, the appellant has no prior convictions under the Act and we particularly note that it has been operating for a period of over 20 years in an industry which presents inherent dangers and is notorious for occasioning injuries to workers. The appellant's record, combined with other evidence, demonstrates a generally conscientious and serious approach to achieve the safety of its employees and other persons on its worksites. We also observe that the appellant has further refined its safety procedures since the accident, producing a set of guidelines for supervisors and sub-contractors, implementing additional structured training for its workers and defining the line of command at its worksites. Those actions are commendable and in accordance with the appellant's obligations under the Act; they should receive due recognition in mitigation of penalty.

76 Following the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, a court sentencing a defendant for more than one offence is ordinarily required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. This approach has been applied by this Court in relation to multiple offences under the Act: see WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 at 298; WorkCover Authority of NSW (Inspector Tucknott) v Company B Ltd [2000] NSWIRComm 119 at [72] and WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/as Boral Asphalt (No 2) (2000) 101 IR 458 at 470-471. However, following an extensive examination of the authorities dealing with the principle of totality, the Full Bench in Crown in Right of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at 194, considered that it may, in some cases, be appropriate to impose a single penalty in relation to multiple offences under the Act but only as a result of the operation of the principle of totality after separate penalties had been assessed for each offence. Having regard to the substantial practical overlap between the two offences here and the approach adopted by the trial judge below, we consider that this case may be resolved by the imposition of a single penalty.

77 Having considered all the circumstances of the case, including the seriousness of the offences and taking into account the mitigating factors referred to, we do not consider that the sentence imposed by the trial judge was excessive. The maximum penalty for each offence was $550,000 and, applying the principle of totality, a total penalty of $65,000 was within the scope of what we would consider to be not inappropriate. Indeed, we consider it is open to the Full Bench to impose a penalty greater than was imposed at first instance. However, having regard to the way in which the appeal proceeded before us, we do not consider it appropriate to do so and impose a penalty in the same quantum as that imposed by the trial judge.

Orders 78 We accordingly make the following orders in the appeal:

1. The appeal is dismissed. 2. The appellant shall pay the respondent's costs of the appeal in a sum as agreed or, in default of agreement, as assessed.

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