BETWEEN : INDUSTRIAL GALVANIZERS CORPORATION PTY LTD T/AS INDUSTRIAL GALVANIZERS

Occupational safety and health - Failure to provide adequate protective clothing and equipment - Penalty not excessive - Adequate reasons provided - Plea of guilty - Prior conviction - Potential for injury

Haysdale Nominees v Shepherd (1997) 98 A Crim R 435

Holland v R [1999] WASCA 43

House v The King [1936] HCA 40; (1936) 55 CLR 499

Morrison v Competitive Foods T/AS Hungry Jacks, unreported; SCt of WA; Library No 9118; 25 October 1991

Morrison v Winton and Atlas Group Pty Ltd, unreported; SCt of WA; Library No 960698; 12 December 1996

Murphy v Morrison, unreported; SCt of WA; Library No 960089; 15 February 1996

Superfine Homes Pty Ltd v Shepherd, unreported; SCt of WA; Library No 990088; 2 March 1999

Verschuren v R (1996) 91 A Crim R 1

1 WHEELER J : I propose to dismiss this appeal and my reasons are as follows. The appellant company was engaged in the business of hot dip galvanising. On 30 October 1998 an employee was instructed by the plant supervisor to enter a tank containing a residue of caustic soda in order to empty the remaining chemical which was in the tank. This was not apparently part of the employee's normal duties nor of any employee's normal duties. It was a function not commonly performed.

2 The employee was provided with rubber gumboots and, it appears, gloves of some kind. The precise substance of which they were made is not clear. Next to the tank was a material safety data sheet describing the protective clothing which was required in the case of dealing with caustic soda which consisted of goggles, safety helmet, face shield, PVC jacket and PVC trousers. The plant supervisor stated that the employee was not supplied with a jacket and trousers because there was none in stock and he had allowed the worker to go ahead with the job because it was a rush job and he did not have a lot of time for thought about it.

3 In the result, some caustic soda splashed inside the employee's boots, apparently without him realising, and he worked until he felt a burning sensation. Burn injuries were sustained to his leg and hands. He returned to work after a period of 6 weeks initially on light duties but subsequently on normal duties.

4 The appellant entered a plea of guilty to failing to provide adequate personal protective clothing and equipment so far as was practicable, pursuant to s 19(1) and s 19(6) of the Occupational Safety and Health Act. A fine of $20,000 was imposed, the available maximum penalty being $100,000.

5 There are broadly two grounds of appeal, one being that the penalty was manifestly excessive and the other relating to an alleged failure on his Worship's part to provide adequate reasons coupled with a submission that particular matters which should have been adverted to by his Worship were not.

6 As to the first, I do note from the materials provided that it is relatively uncommon apparently for a penalty in excess of $10,000 to be imposed. It is not clear why this is so without detailed examination of each particular case and of course the courts have consistently warned against establishing what appears to be a tariff based on superficial examination of what may prove to be unlike cases. Some facts have been made available in summary form by the appellant in respect of those cases and it may well be, from my examination of them, that there is room to "firm up" the sentences which are imposed. Be that as it may, I find it impossible, having regard to the statutory scheme and the statutory maximum, to regard a penalty of 20 per cent of the maximum, for a deliberate breach of the Act caused by reference apparently to the appellant's convenience, as manifestly excessive.

7 I should note briefly a submission that was made, particularly in respect of the case of Palynolab Resources Pty Ltd v Morrison, unreported; SCt of WA; Library No 960477; 22 August 1996, because it was said that the facts of this case were similar to, but in some respects less serious than, that case. It is certainly the case that in that case far more serious consequences ensued. However, the court in that case found the degree of negligence of the offender to have been relatively low and that was because appropriate protective equipment had in fact been provided and had been provided to an employee who had apparently a substantial degree of expertise in dealing with the particular substance. Those facts I think distinguish that case markedly from this.

8 Turning to the particular matters in respect of which complaint is made, it is first submitted that his Worship erred by failing to have any or any adequate regard for the early plea of guilty, and it is certainly true that his Worship did not advert to the fact of the plea. It is generally the case that credit will be given for a plea of guilty for two reasons. One reason broadly relates to the convenience of the community and of those involved in the offence and the saving of expense which is involved in a plea of guilty. The other is that it is often seen to be a demonstration of remorse.

9 However, the weight to be given to a plea of guilty depends upon the circumstances of the case. Although his Worship was I think in error not to refer to it in this case, it appears to me to have been not a case in which one could have afforded significant weight to a plea of guilty by reason of the fact that the breach of the statute appeared to be a very clear one. The plea was largely, it appears to me, recognition of the inevitability of conviction.

10 Next, there are two matters which are referred to, which I think go together - the materials provided in support of submissions in mitigation and, in particular, the appellant's improved safety policies between the time of the accident and the time of sentencing.

11 A substantial quantity of material which related to steps taken by the appellant subsequent to the accident to deal with safety issues was provided to his Worship. Submissions were made to me in respect of the quantity of material and the limited amount of time which would apparently have been available for his Worship to peruse it. However, it seems to me in the end that those submissions boil down to speculation, since it is not possible to discern from the transcript what consideration, if any, his Worship gave to the materials during the course of submissions or the extent to which his Worship actually sat and read them while the submissions were being made.

12 To the extent that he may not have considered them in detail was because they were not brought sufficiently to his attention by counsel for the appellant. If it had been sought to take his Worship to particular aspects of those materials as demonstrating a changed or improved attitude or an exemplary record since the accident, then, in my view, the only appropriate course would have been to have taken his Worship to those portions, not simply to hand his Worship a very thick bundle of materials some of which appear to be of extremely limited relevance.

13 There are two further difficulties in relation to the appellant's submission that insufficient weight was given to the materials. First, his Worship appears to have referred to them - I say "appears" because the comment in the transcript is ambiguous, but his Worship did say:

"This is not a situation where there is no industrial safety obviously from the material which I have got before me. There have been safety measures in place."

14 It is not entirely clear whether that is a reference simply to the safety measures which were in place, but which were not used in respect of the protective clothing, or whether, as it appears to me from the context it probably was, it is a reference more broadly to all the materials that were placed before his Worship to demonstrate that there was in many respects a concern with appropriate safety procedures. Second, I note from my own reading of those materials that they were not uniformly mitigating. It does appear that one at least of the audits of the company's safety and health management systems was not voluntarily undertaken but was spurred by an improvement notice issued by a Worksafe inspector, and some of the materials tend to show - and in particular I refer to an audit dated 9 June 1999 - that although it may have put in place procedures to improve its safety performance, the appellant had at least at that time a substantial way to go to ensure that it was following appropriate procedures.

15 There was a submission in relation to the wearing of boots and gloves by the employee who was injured, which was abandoned. Leaving that aside, the next matter referred to by the appellant is that the task undertaken by the injured employee was a one-off operation. It seems to me that that is simply not a mitigating circumstance in relation to the circumstances of this case. It may sometimes be, for example, that there may be a well-considered system which is appropriate to cope with most circumstances but an unusual operation is not adequately coped with simply because it is not anticipated that it will occur or it is not anticipated that the usual system will be inadequate to cope with it. That is not this case. This case was one in which there was a very clear need for protective clothing. The need was known and the clothing was not supplied.

16 Again, it seems to me not to be significant that the injuries were in fact not very substantial in the sense that the employee eventually made a full recovery. It is not only the degree of injury but the potential for injury which is relevant and his Worship referred to that in some detail in his reasons.

17 There was also mention in argument before me of his Worship's failure to consider the ability of the appellant to pay. In respect of that, I simply note that no submission was made to his Worship by anyone concerning the appellant's ability to pay or otherwise, and there is no suggestion either before him or before me that the fine imposed was excessively high in comparison with the means of the appellant.

18 Finally, it is submitted that his Worship erred in having too much regard to two matters. One was the appellant's prior conviction for a health and safety related offence, indeed, an offence pursuant to s 19 of the Act. It was submitted to me that his Worship considered the offence for which the fine was imposed was similar to a matter for which the appellant was previously convicted but factually the submission seems to be incorrect when one considers the transcript, although there is again an ambiguity in that at one point those typing his Worship's remarks seem to have thought that he might have said that the matter was similar. It is clear later in his Worship's reasons that he was aware of the fact that the prior conviction was not, as he put it, "for the same sort of thing."

19 However, his Worship did consider the previous offence to be of significance and, in my view, rightly so in circumstances where there was a deliberate decision to proceed without protection because it was not convenient to wait until protective clothing was available. It is against the background of a previous conviction and, therefore, one assumes, a full knowledge of the relevant provision of the Act that that decision was made.

20 I pause to note that of course the prior conviction is not aggravating. It merely deprives the appellant of the benefit which would otherwise be obtained from an absence of prior convictions and it serves to an extent to put this present failure into a context. There is no suggestion that his Worship did regard it as aggravating.

21 There is a further submission that his Worship gave excessive weight to the potential consequences of the breach but, in my view, that was far from being an error. In the end his Worship, in my view, briefly but adequately dealt with what he considered - and correctly, I think - to be of significance; that is, the deliberate breach, although noting that the appellant had some concern for safety matters from the materials before him, the potential for injury, all in the context of the prior offence. For those reasons, it seems to me the appeal should be dismissed.