Insp Mayo-Ramsay v Rail Infrastructure Corporation

PROSECUTOR: Mr J J Millar of counsel Solicitor: Ms R Panagoda WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr J N Gleeson QC with Mr M Shume of counsel Solicitor: Mr C Simon Pricewaterhouse Coopers Legal

JUDGMENT: - 21 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 28 August, 2002 Matter No IRC 4151 of 2000

inSPECTOR MAYO-RAMSAY v RAIL INFRASTRUCTURE CORPORATION Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

Matter No IRC 4152 of 2000 INSPECTOR MAYO-RAMSAY v RAIL INFRASTRUCTURE CORPORATION Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 At some time around the middle of 1998, due to recent heavy rain, a landslip occurred about 354 km from Sydney on the Sandy Hollow-Kerrabee railway line. Earthworks were necessary to restore the line to proper working order. In order to access the worksite by road vehicle it was necessary to travel through a railway cutting on the railway line at a point about 349 km from Sydney. The cutting was narrow and any road vehicle proceeding through it was forced to straddle the railway line.

2 On 18 August 1998, Chris Sucker, an employee of Rail Services Australia ("RSA"), Justin Stewart, Ken Carrall and Shaun Lantry, employees of a contractor engaged to perform work at the landslip site, drove through the cutting without incident. After these men had gone through Trevor Ratcliffe, a ganger/supervisor employed by the RSA and Darren Easter, a member of RSA's drainage and earthworks crew, commenced to drive through the cutting on the railway line in a utility vehicle. Peter Avent, an employee of another contractor engaged to do work on the landslip site, was walking behind the utility. The cutting, at a curve in the line, was about 100 metres long. Whilst the three men were on the railway line an empty coal train (G209) approached from behind. Mr Avent was able to jump clear of the train's path but the train collided with the utility killing Mr Ratcliffe and Mr Easter.

3 On 18 August 2000 Rosalie Mayo-Ramsay, an Inspector of the WorkCover Authority of New South Wales made application for summons prosecution pursuant to s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983 against Rail Services Australia.

4 Section 15(1) of the Act states: 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. 5 Section 16(1) of the Act imposes the obligation on an employer to "ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work."

6 It was alleged in the summons pursuant to s 15(1) of the Act that: On or about 18 August 1998 near Sandy Hollow, New South Wales, the defendant, RAIL SERVICES AUSTRALIA being an employer, DID FAIL to ensure the health, safety and welfare at work of all its employees an in particular Trevor Ratcliffe, Darren Easter and Chris Sucker in failing to provide or maintain safe access to or egress from the place of work for its employees that was safe and without risk to health contrary to s 15(1) of the Occupational Health & Safety Act 1983. The particulars of the charge are: a. At all material times the Rail Access Corporation contracted with the defendant to maintain and perform work on the Sandy Hollow-Kerrabee railway line.

b. The work included earthworks associated with the landslip at the location of the railway line, being 345 (sic) kilometres from Sydney.

c. Access with vehicles to the worksite required travelling through a railway cutting on the running Sandy Hollow-Kerrabee railway line at a point of approximately 349 kilometres from Sydney.

d. At all material times the Defendant employed Trevor Ratcliffe, Damien Easter, Jim Denahey and Chris Sucker to carry out earthworks associated with track maintenance.

e. The defendant failed to provide or maintain safe access to and aggress from the place of work for its employees to ensure the safe passage of employees in vehicles when travelling through the railway cutting on the running Sandy Hollow-Kerrabee railway line.

f. As a result of the defendant's failure, Trevor Ratcliffe and Darren Easter suffered fatal injuries and Chris Sucker was placed at risk of injury. 7 It was alleged in the summons pursuant to s 16(1) of the Act that: On or about 18 August 1998 near Sandy Hollow in the state of New South Wales, the defendant, RAIL SERVICES AUSTRALIA being an employer, DID FAIL to ensure that persons not in its employment, and in particular Peter Avent; Justin Stewart; Ken Carrall and Shaun Lantry, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to s 16(1) of the Occupational Health & Safety Act 1983. The particulars of the charge are: The defendant: a. At all material times the Rail Access Corporation contracted with the defendant to maintain and perform work on the Sandy Hollow-Kerrabee railway line.

b. The defendant contracted with C & W Constructions Pty Ltd and Ladtrans (sic) Pty Ltd to provide labour and plant to assist in the performance of the work.

c. The work included earthworks associated with a landslip at the location of the railway line, being 354 kilometres from Sydney.

d. Access with vehicles to the worksite required travelling through a railway cutting on the running Sandy Hollow-Kerrabee railway line at a point of approximately 349 kilometres from Sydney.

e. At all material times the Defendant employed Trevor Ratcliffe, Darren Easter, Jim Denahey and Chris Sucker to carry out earthworks associated with track maintenance.

f. The defendant failed to provide or maintain systems of work, to wit, systems of communications to ensure that information as to train movements was accurately received by those using the train line to access the place of work.

g. The defendant failed to provide such instruction, training and supervision as may be necessary in relation to the operation of communications systems for the safe access of vehicles to the running Sandy Hollow-Kerrabee railway line, to ensure the health and safety at work of its employees.

h. The defendant failed to provide or maintain safe access to and aggress from the place of work for its employees to ensure the safe passage of employees in vehicles when travelling through the railway cutting on the running Sandy Hollow-Kerrabee railway line.

i. As a result of the said failures Peter Avent, Justin Stewart, Ken Carrall and Shaun Lantry were placed at risk of injury.

8 In January 2001 Rail Access Corporation and Rail Services Australia were amalgamated to form a new state owned corporation known as Rail Infrastructure Corporation.

9 The defendant, now known as Rail Infrastructure Corporation, on 10 May 2001 entered pleas of not guilty on both charges. On 16 April 2002 the pleas were changed to guilty in respect of both charges.

10 At the hearing on 30 July 2002 an agreed statement of facts was tendered. The statement was in the following terms: 1. At all material times, the Rail Access Corporation contracted with the defendant to maintain and perform work on the Sandy Hollow-Kerrabee railway line, New South Wales. The work included earthworks associated with a landslip at the location of the railway line being 354kms from Sydney.

2. Access for vehicles to the worksite required travelling through a railway cutting on the running Sandy Hollow-Kerrabee railway line at a point approximately 349kms from Sydney. 3. At all material times the defendant employed Trevor Ratcliffe as a supervisor and Darren Easter as a member of the defendant's drainage and earthworks crew. At all material times Trevor Ratcliffe, Darren Easter, Jim Denahey and Chris Sucker were employed by the defendant to carry out earthworks associated with track maintenance. 4. In order to proceed safely through the cutting at about the 349km mark, it was essential that the persons passing through the cutting had accurate information as to train movements along the track passing through the cutting. 5. Prior to proceeding to the worksite the men proposing to carry out the work arrived at the Sandy Hollow depot where they obtained radios. Trevor Ratcliffe instructed Jim Denahey to go to the Kerrabee staff hut to obtain the train runnings. Before Mr Denahey left Trevor Ratcliffe asked him if he knew how to switch the radio to train working and Mr Denahey indicated that he did. However, when Mr Denahey arrived at the Kerrabee staff hut he realised that he did not know how to switch the radio to train working so he called up Mr Ratcliffe to ask him how this was done. Mr Ratcliffe then told Mr Denahey how to change the radio to train working. 6. Mr Denahey rang Broadmeadow train control from the Kerrabee staff hut in order to obtain the train runnings which he wrote on a scrap of paper. He then went back to the truck in which he had arrived and contacted Trevor Ratcliffe by radio. He gave Mr Ratcliffe the train runnings but did not refer to train G209 having left Sandy Hollow at 6.40am nor to the fact that the train was presently in the section from Sandy Hollow to Kerrabee. 7. Mr Ratcliffe arrived at the beginning of the cutting with Darren Easter and one Peter Avent who was an employee of Landtrans Pty. Ltd. Chris Sucker and Justin Stewart, an employee of C & W Constructions Pty. Ltd, were also at the cutting. They were to proceed through the cutting in a utility vehicle owned by C & W Constructions Pty. Ltd. Ken Carrall and Shaun Lantry of C & W Constructions were also at the cutting and were each driving a dump truck. 8. While the men were at the cutting Mr Ratcliffe informed them that the next train was not due until 8.40am and that they were alright to proceed through the cutting. Mr Stewart and Mr Sucker in the C & W Constructions utility vehicle proceeded through the cutting followed by the two dump trucks. Mr Ratcliffe drove a Toyota Hi-lux utility vehicle onto the track and proceeded through the cutting with Darren Easter in the vehicle as a passenger. Mr Advent walked behind the vehicle along the track to knock ballast off the track. 9. While Mr Ratcliffe was driving the utility vehicle along the track a train approached from behind. Mr Avent jumped clear of the train but the train collided with the vehicle driven by Mr Ratcliffe. 10. At no time had train crews been informed that work would be carried out at the 354km mark or that men and machinery would be using the cutting to gain access at 349km to that worksite. 11. Prior to the accident it had been possible for those needing access through the cutting to use the circuit phones located at both ends of the cutting to contact Muswellbrook signal box in order to arrange safe passage for men and machinery through the cutting. In order to do so it was necessary to turn the handle on the phone three times. However, on 27 July 1998 Muswellbrook signal box was closed and changed to a remote signalling system. In order to successfully communicate using the circuit phones it then became necessary to ring through to the area controller at Broadmeadow by continually turning the handle on the phone for 15 seconds. The area controller at Broadmeadow is located near the train controller. It would have been possible for the area controller to talk to the train controller to obtain running times. 12. On 17 August 1998 while waiting for a train to come through the cutting Mr Sucker had tried to use the phone at the cutting but was not successful in obtaining contact. He informed Mr Ratcliffe that the phones were not working and that he would have to see someone about it. When the phones were inspected on 18 August 1998 it was found that there were no written instructions as to how to use the phones at all nor how to contact Broadmeadow area controller in particular. No information had been related to persons working on the track or using the track to gain access to a worksite that the system to contact control had changed following closure of the Muswellbrook signal box. 13. Mr Ratcliffe had requested Ken Thornton of the defendant that a person be provided to set up communications at the Sandy Hollow Depot during the week prior to starting work at the 354km slip as there were difficulties with communications at their worksite. This request was denied. 14. Mr Ratcliffe and Mr Denahey had both completed training in safe working procedures and obtained their PW31 qualifications. This course did not consider issues concerning access to the worksite. There was no system in place to ensure that contractors who would work in or about the track completed a track awareness course unless they were to work on or about the track for more than five days. 15. A Risk Assessment Plan was found in the debris from the vehicle driven by Mr Ratcliffe at the time of the accident. This document made no reference to access to and egress from the worksite. 16. With respect to communications as to train running times via the telephone, there was no required procedure for the correct method of passing on or receiving information about train runnings to ensure that the receiver obtained accurate information, for example by repeating back to the person supplying the information each item of information supplied. 17. As a result of the collision between the train and the vehicle driven by Mr Ratcliffe, Mr Ratcliffe and Mr Easter suffered fatal injuries. 18. By reason of the facts set out above the defendant failed to provide or maintain safe access to and egress from the proposed worksite at about 354km mark from Sydney. As a result of that failure Trevor Ratcliffe and Darren Easter sustained fatal injuries, Chris Sucker, Peter Avent, Justin Stewart, Ken Carrall and Shaun Lantry were exposed to risks to their health and safety at work and in the conduct of the defendant's undertaking while at the defendant's place of work.

11 Other evidence in the proceedings consisted of 31 photographs taken at the scene of the accident; an inspection report by Inspector Mayo-Ramsay; a schedule of the defendant's prior convictions; and, an affidavit by Jamie Milton McDonald, the defendant's general manager, safe working systems and operational standards. Inspector Mayo-Ramsay and Mr McDonald also gave oral evidence.

12 Inspector Mayo-Ramsay gave brief evidence about the state of the accident scene some six weeks after the accident and, in particular, the placement of signs by the defendant.

13 Mr McDonald's evidence covered: the history of the defendant since 1996; the circumstances surrounding events on 18 August 1998; the defendant's response to those events; the defendant's occupational health and safety policies, practices and procedures; the training that Messrs Ratcliffe and Denahy had received up to 18 August 1998; safety systems put into place after 18 August 1998; the Special Commission of Inquiry into the Glenbrook Rail Accident; the appointment of a Coordinator General of Rail; the amount of resources allocated to the establishment of new safety rules; counselling of employees involved in the events at Sandy Hollow; Cooperation with WorkCover; lost time injuries; auditing of safety procedures.

14 After reviewing the facts and in light of the charges and the particulars thereof, I am satisfied that the offences have been proven. The pleas of guilty by the defendant was properly made and I will enter verdicts accordingly.

15 Mr J J Millar of counsel appeared for the prosecutor. He referred extensively to the agreed statement of facts and submitted that:

· It appeared that access and egress to a worksite were not the subject of safe working procedures or of training provided to employees and contractors. · Contractors were not required to undertake a track awareness course unless they were required to work on or about the track for a period greater than five days. · There was no requirement for employees to repeat messages received by them over the phone or by radio. In those circumstances there was an obvious risk of error in the message being received. · The conduct of the defendant since 18 August 1998 needs to be taken into account. This included the safety measures adopted by the defendant. · The defendant entered a plea of guilty. In this case the plea was entered on the day of the contested hearing and in the face of a strong case for the prosecution. · The defendant is entitled to the benefit of the principle of totality. · The defendant has prior convictions. Accordingly the maximum penalty is $825,000 for each conviction. · The events of 18 August 1998 resulted in two fatalities. These may be a measure of the seriousness of the breach by the defendant. Additionally, other workers were put at risk. · The nature and quality of the offences must be evaluated by reference to the defendant's failures. The failures relating to communications lay at the heart of the defendant's failures to ensure the safety of the workers. · The Court should impose a substantial financial penalty. · The prosecutor seeks costs and a moiety. Submissions for the defendant

16 Mr J N Gleeson QC with Mr M Shume of counsel appeared for the defendant. Mr Gleeson submitted that:

· Up to 1996 the rail network in New South Wales was owned operated and managed by the State Rail Authority of NSW ("SRA"). In July the SRA was "dis-aggregated" into four bodies, namely the Rail Access Corporation, State Rail Authority, Freight Rail Corporation and Railway Services Authority of NSW (later changed to Rail Services Authority). · In December 1999, McInerney J was appointed to inquire into all aspects of rail safety including any safety improvements necessary for rail operations. · In November 2000 McInerney J handed down a second interim report. As a result of this report, as of 1 January 2001, Rail Access Corporation and Rail Services Australia were dissolved as separate entities and amalgamated to form a new statutory state owned corporation, Rail Infrastructure Corporation. · On 11 April 2001, McInerney J handed down a final report of the Special Commission of Inquiry into the Glenbrook Rail Accident. Amongst other findings McInerney J found the disaggregation of the State Rail Authority in July 1996 had failed to work in practice. His Honour said at p 75 of the Final Report: The evidence is clear that no proper consideration was given to safety management in New South Wales when the 1996 disaggregation occurred. The process appears to have been driven by an ideological commitment to the separation of train operations from infrastructure ownership and to the economic benefits which were perceived to be available from the creation of RAC with a duty to collect access fees on behalf of the government. The lack of proper planning of the safety implications of the disaggregation led directly to the deficiencies in safety management which each of the organisations attempted to deal with in their own way from 1996 onwards. · At p 76 of the Final Report his Honour said "The 1996 disaggregation occurred without any analysis of the safety implications …" · The effects of disaggregation on safety provide some explanation as to why the defendant's safety record was as it was between 1998 and 1999 but that following the implementation of the McInerney recommendations there has been a dramatic increase in safety on the rail network. · There was a failure by Mr Denahy to inform his supervisor Mr Ratcliffe of the imminent approach of train G209. · Following the accident the defendant took immediate remedial steps as set out in Mr McDonald's affidavit. · Mr Ratcliffe and Mr Denahy were experienced, long serving employees who both possessed a PW31 certificate in safe working competency. · In March 1999 RSA engaged Dupont Safety & Management Inc. to review the current safety system and to recommend changes. These recommendations were implemented. · The defendant reviewed and replaced its Safe Working Units that were the subject of criticism by McInerney J. A project team of 40 personnel was established and a budget of $5.1 million was approved for this purpose. Stage 1 of new network safety rules, which deal with maintenance and persons working on tracks were introduced in November 2001 and stages 2 and 3 are to be introduced from 1 December this year. Some 11,000 employees will be required to undertake the training in stages 2 and 3. · Lost time injuries have decreased dramatically. · The defendant has provided counselling to employees affected by the events of 18 August 1998. · It was not reasonably foreseeable that a trained and experienced employee such as Mr Denahy would fail to inform his supervisor of an approaching train. · The immediate cause of the accident was Mr Denahy's failure to pass on the relevant information. If Mr Ratcliffe had received that information it is clear he would not have proceeded to go through the cutting. · The defendant did have in place a system and procedures to protect workers and there was a risk assessment plan in place. Whilst it was true that the risk assessment plan did not deal with access and egress from the worksite that may be understandable given the arrangements Mr Ratcliffe made to be informed of train running times. · The nature and quality of the offence should be assessed towards the lower end of the penalties. · As to the guilty plea the defendant had sought to arrange a conference with the prosecution to discuss entering a plea in December 2001. · The defendant has an ongoing commitment to safety. · As a result of the McInerney Inquiry RSA was dissolved and the Chief Executive is no longer with the organisation. This should be taken into account when the Court considers the issue of specific deterrence. · As to the issue of general deterrence there should be some benefit flowing back to the defendant given the significant steps taken to get its house in order safety-wise.

17 It should be noted that the statutory changes relating to re-organisation of the various rail corporations and the detail of the changes made to the defendant's systems of work since 1999 are set out in Inspector Vierow v Rail Infrastructure Corporation (2002) 113 IR 208, a judgment handed down on 23 April 2002, and summarised in Inspector Barnard v Rail Infrastructure Corporation [2002] NSWIRComm 107 (judgment handed down on 20 May 2002). In light of the detail contained in those two judgments it was not considered necessary to repeat those matters here.

18 In WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) (2001) 109 IR 347 at par [19] and after referring to Benbow v Converquip Pty Ltd (2001) 106 IR 258 at par [42], WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185-187 and Manpac Industries Pty Ltd (Formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at par [82], Hungerford J summarised what I consider to be, with respect, the proper approach to be taken to sentencing as follows: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce. 19 In the present proceedings the defendant is charged with two offences under the Occupational Health and Safety Act. The charge under s 15(1) of the Act is in respect of the defendant's failure to ensure the health and safety of three of its employees, namely, Messrs Ratcliffe, Easter and Sucker. The charge under s 16(1), which arises out of the same factual matrix, is in respect of the defendant's failure to ensure that employees of contractors, namely, Messrs Avent, Stewart, Carrall and Lantry were not exposed to risks to the health and safety.

20 In considering the objective seriousness of the offences, there are a number of relevant factors to be taken into account and in this regard it is convenient to commence with the situation on the morning of 18 August 1998. There was a crew of eight workers - four employees of the defendant (including Mr Denahy) and four employees of contractors - with a convoy of four vehicles, including dump trucks. Mr Ratcliffe, a ganger with 34 years' experience as an employee of the defendant, was in charge. His task was to reach the worksite and repair the damaged railway tracks. In order to reach the worksite, however, it was necessary for the convoy of men and vehicles to negotiate 100 metres of a railway cutting. In order to proceed through the cutting it was necessary for the vehicles to straddle the railway line. The cutting was located at a curve in the railway line where, it is apparent from the photographs of the accident scene, the ability to see a train approaching from the east was limited.

21 Such an operation, it seems to me, was a reasonably substantial and risky one; an operation that obviously required planning and forethought and an operation that, in my opinion, should not have been undertaken by persons not properly trained and instructed.

22 The fact is there was no settled system of work laid down and no serious forward planning by the defendant that took an adequate account of safety considerations of moving men and vehicles through a 100-metre long railway cutting. There was no policy or procedural requirement to: prohibit entry to such a cutting; temporarily close the line; inform the train controller that on 18 August 1998 men and equipment needed to proceed through the cutting; to inform train crews of the presence of men and vehicles in the cutting; or, to post lookouts at a suitable distance from both ends of the cutting. And so, none of these safety measures were put in place by the defendant.

23 Mr McDonald's evidence showed that the relevant safety policies and procedures in place at the time of the accident were: Job Safety Analysis; Safety Awareness Briefings; and, Pre-Work Briefings. It was said that the job safety analysis provided a "framework" for the analysis of all tasks, jobs and processes to: ensure all hazards are identified and risk assessed, controlled or monitored. Managers and supervisors were responsible for ensuring that a job safety analysis was performed and documented and that appropriate control measures were implemented and continually monitored and reviewed. 24 The defendant's job safety analysis policy provided that such an analysis should be carried out in the following situations: a) when new plant, equipment or processes are introduced into the work place; b) if existing plant, equipment or processes are modified; c) if the workplace environment changes; d) if new health and safety information about plant, equipment or processes becomes available; e) if information is obtained about a previously unknown design or manufacturing fault, or about a previously unidentified hazard; f) if incident and accident reports or observations from employees or others indicate that there may be uncontrolled risk(s) in the workplace.

25 The policy also set out the steps in job safety analysis and a requirement to document the analysis.

26 As the policy itself indicated, it was a "framework" that left the task of identifying hazards and how to deal with them largely up to the relevant manager or supervisor. Within that framework the entire responsibility for getting the convoy of men and vehicles to the worksite through the cutting rested with Mr Ratcliffe. How he was to do it was a matter for his discretion and his discretion alone within the scope of his experience and training. Mr Ratcliffe apparently did execute a risk assessment plan but it is noteworthy that it did not deal with access to or egress from the worksite. In other words, it did not assess the risks associated with moving men and vehicles through the railway cutting. Mr Ratcliffe held a PW31 certificate in safe working procedures. But the training course to qualify for such a certificate did not address issues concerning access to a worksite.

27 It may be argued that the presence of an experienced ganger and the simple procedure of checking on train running times before negotiating the railway cutting, constituted an adequate safety system in the circumstances. One does not need to be an experienced ganger to know that before passing through a cutting it would be necessary to ensure that no trains would be doing the same thing at the same time. And it is important, I believe, to realise that apart from checking on train running times there were no other safety measures in place.

28 This then was the state of affairs in which Mr Ratcliffe had to decide, on the morning of 18 August 1998, how he was to reach the worksite. The only access open to him was through the cutting.

29 In order to negotiate the cutting Mr Ratcliffe had to find out the train running times. In this respect he had three options. The first was to use a trackside phone located at the end of the cutting to phone the train controller and receive the information directly. However, it appears from the evidence that Mr Ratcliffe was told that the phone was not working. In fact, the phone was working but in order to contact the train controller at Broadmeadow the handle of the phone had to be turned continually for 15 seconds. There were no instructions in the phone box to this effect.

30 The second option was to use communication facilities at the Sandy Hollow depot but these did not exist. Mr Ratcliffe had made a request during the week prior to 18 August 1998, for the setting up of such facilities as there were communication difficulties at the worksite. That request was turned down. No proper explanation was given as to why that was the case.

31 The third option was to contact the train controller from the Kerrabee staff hut. Mr Ratcliffe could have gone to the hut himself or sent one of the other employees. Understandably, he sent Mr Denahy. Mr Ratcliffe stayed with the main party because he was responsible for employees of contractors who had not received any training in track awareness and it is reasonable to expect Mr Ratcliffe did not want to leave them unsupervised.

32 Having received instructions from Mr Ratcliffe, Mr Denahy proceeded to the Kerrabee staff hut to communicate with the train controller at Broadmeadow. This communication, which was recorded, showed that the controller read out the times of the trains that were to enter the section of track where the cutting was located up to midday. The train controller told Mr Denahy that train U209 had left Sandy Hollow at 6.40 am, UL213 was due to leave Sandy Hollow at 8.55 am, 4861 was due to leave Sandy Hollow at 10.35 am and UL276 was due to leave Kerrabee at 9.45 am. The reference by the controller to U209 was wrong. The proper reference should have been G209. The record of the conversation also shows that Mr Denahy repeated back to the controller each of the train runnings except G209 at 6.40 am.

33 In any event, the agreed statement of facts indicated that Mr Denahy wrote down the train runnings on a scrap of paper. He then went back to the truck he had arrived in and radioed Mr Ratcliffe. Mr Denahy gave Mr Ratcliffe the train runnings but did not refer to train G209 (or U209) as having left Sandy Hollow at 6.40 am. Mr Ratcliffe wrote down in his notebook the train runnings for UL213, 4861 and UL276 but there was no entry for G209. On the basis of this advice Mr Ratcliffe proceeded to direct the workers under his control to proceed through the cutting. As I have already stated, as Mr Ratcliffe was driving a utility vehicle through the cutting it was hit by train G209 and he and his passenger, Mr Easter, were killed.

34 Mr Denahy was an experienced employee. He had over 20 years at the time of the accident. He had gained a number of internal qualifications and possessed a PW31 certificate in safe working competency. It would not be unreasonable to expect that a man of his experience, working for so long in what is an inherently dangerous industry, would understand the criticality of informing his supervisor of the imminent arrival of a train at the cutting. But for some reason that is not explicable on the evidence before me, Mr Denahy failed to do so.

35 It may be that Mr Denahy's conduct in failing to ensure that he passed on complete and accurate details about the train movements leaves him open to criticism and it could be said his failure was the immediate cause of the accident. But to leave it at that would be a most superficial assessment of culpability in this case. In WorkCover Authority (NSW) (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at 43-44, Hungerford J commented on the distinction for sentencing purposes between the immediate cause of an accident and the prior steps being the detriment to safety enabling the cause to operate. His Honour said: I accept [senior counsel's] submission that the causa causans of the accident was the use of the industrial hammer to strike the legs of the structure. However, that was only the immediate cause of the collapse and which cause could not have become operative without the defendant's failure to assess the stability of the structure on the day it was to be demolished and to provide adequate supervision to ensure the planned system was followed. Put another way, although the causa causans may seem innocuous enough, and as not involving very much culpability on the part of the defendant itself, the real failure here by the defendant to provide or maintain a safe system of work was the causa sine qua non being the preceding link in the chain of causation in failing to assess the structure's stability by adequate supervision at the time it was to be demolished; the failure to ensure work was not performed on the structure prior to the arrival of the mobile crane was contrary to the proposed method as originally planned.

36 In my opinion, the "real failure here by the defendant" was the failure to maintain a safe system that would ensure safe access to a place of work. In other words, there should have been in place a clear and unambiguous system that enabled workers to negotiate railway cuttings of the type that exists on the Sandy Hollow-Kerrabee railway line and it should not have been a matter left for the relevant supervisor to work out at the point where he found he had no alternative in attempting to reach the worksite but to pass through the cutting.

37 It should really not have been necessary for Mr Denahy to go to the staff hut in the first place. The fact that he was required to relay information from the train controller to Mr Ratcliffe carried with it the inherent risk that the second hand information received by Mr Ratcliffe was wrong or inaccurate. The risks associated with second hand communications were compounded in this case by what appears to have been either no requirement or, at best a loosely enforced requirement, for the receiver of such critical information as that transmitted to Mr Denahy, to repeat back what was said to him. If that had been a requirement, properly enforced, the train controller may have insisted on Mr Denahy repeating all of the train running times, including those for train G209 and there would have been no mistake that Mr Denahy had heard correctly. It would also have heightened Mr Denahy's awareness of the need to pass on the whole of the information to Mr Ratcliffe.

38 When one considers the scenario of men and vehicles moving through a narrow, 100-metre long railway cutting while the line is still live and train crews operating on the line are unaware of what is occurring, a moment's brief reflection reveals the risks associated with it. Those risks are thrown into even sharper focus when one further considers that the only measure of protection that the workers had whilst moving through the cutting was the accuracy of second hand information about train running times. The prospect of all road vehicles having been on the line at the time the train entered the cutting does not bear thinking about but it does underscore the seriousness of the risks involved.

39 The defendant's system of work in moving workers safely through the railway cutting was tragically inadequate. If there had been proper rules in place relating to passing through the cutting, including proper communication procedures and practices, proper communications technology, appropriate training and unambiguous procedures to negotiate railway cuttings by vehicles and personnel, preferably whilst the line was temporarily closed, it would not have been necessary for Mr Denahy to have been sent to the staff hut to communicate with the train controller and the dreadful accident that occurred would have been avoided. The prime responsibility for what occurred lies with the defendant and not Mr Denahy.

40 The defendant submitted that Mr Denahy's failure to properly inform Mr Ratcliffe of train movements was not reasonably foreseeable and that, therefore, the defendant's level of culpability is not as high as it otherwise would be. As I have already said, whilst there might be some basis for expecting that an experienced employee would relay critical information accurately, if there had been a proper and safe system of work in place, Mr Denahy would not have been required to go to the staff hut and his failure would not have occurred. The proper perspective from which to consider the question of foreseeability in this case is to ask whether, in the absence of a safe method of negotiating the cutting, it was reasonably foreseeable that workers would be exposed to risks to their health and safety when passing through it. Clearly, it was. The risk being readily foreseeable, the obligation lay with the defendant to put in place a safe system, which should not have involved a worker being put into a position of taking down on a scrap of paper critical messages about train running times in circumstances where there was the prospect of the message being misunderstood, not properly heard or inaccurately passed on.

41 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant, in my view, to assessing the seriousness of the offence in this case: see Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. In this respect, immediately following the accident the defendant took the following steps: (a) Instructions were issued not to drive through the cutting. (b) The gates at each end of the cutting were locked. (c) Instructional signs were attached to each of the gates. (d) The call procedure was placed inside the trackside telephones. (e) The line through the cutting was graded so that it was extremely difficult to drive on (or beside it). (f) Portable satellite phones were made available for use at sites where communications with the Train Controller were difficult. (g) A pre-access check list and briefing note procedure was put in place which indicates the access to and egress from the work site.

42 If they had been in place at the time, any one of these quite straightforward measures could have avoided what happened on 18 August 1998.

43 As to the fact that two employees of the defendant died on 18 August 1998, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428-428; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185. None of the employees of the contractors were killed or injured but it is pertinent to note what was said by the Full Bench in Independent Cargo & Wool Services Pty Ltd v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT 92/1041, 10 March 1994) at 4: If in any given case the failure involved was a serious and obvious one, with a clear potential for creating dangers to persons employed in industry even though no one was killed or injured, the case, because of its nature and quality, may well require the imposition of a major penalty.

44 The defendant has been the subject of a number of recent judgments relating to charges under the Occupational Health and Safety Act. In WorkCover Authority of NSW (Inspector Belley) v Rail Infrastructure Corporation (2001) 111 IR 442, which involved a prosecution under s 17(1)(a) of the Act, the defendant was fined $100,000 for an offence that occurred on 27 October 1998. In that case Mr Stephen Hockings was fatally injured at Trangie Rail Yard while he was carrying out shunting duties for the Rail Access Corporation. In Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80, which involved a prosecution under s 15(1) of the Act, the defendant was fined $150,000 in relation to an offence that occurred on 15 October 1998. In that case a train hit and killed one of the members of a maintenance gang and seriously injured another at Bell in the Blue Mountains. In Inspector Barnard v Rail Infrastructure Corporation (No.2] [2002] NSWIRComm 107 revised - 24/05/2002, which involved another prosecution under s 15(1) Haylen J fined the defendant $250,000 in relation to an offence that occurred on 14 June 1998. In that case a traffic officer was hit by a coal train whilst acting as a lookout for a railway maintenance gang and was seriously injured. In Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 111, which involved a prosecution under s 15(1) of the Act, the defendant was fined $225,000 in relation to an offence that occurred on 30 July 1999. In that case an employee placing metal posts between railway lines preparatory to erecting a safety fence for work which was to take place the following day was hit by a passing suburban train and killed. The defendant's record of prior convictions also shows that penalties were imposed on the defendant on 10 December 1999 (s 15(1) - $6,000); 16 February 2001 (s 15(1) - $15,000); 11 April 2001 (s 15(1) - $70,000); and, 18 May 2001 (s 16(1) - $22,500).

45 The issue of prior convictions was considered by the majority of the High Court in Veen v R (No 2) (1988) 164 CLR 465 at 477-478: There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the incident offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Otterwell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the incident offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability in the incident case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and never has been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

46 As Haylen J noted in Inspector Barnard v Rail Infrastructure Corporation (No 2) at par [31]: 31. Consistent with the principles expressed in Veen , the fact that an offender has a long record of previous convictions and prior offences of the same character does not justify the imposition of a sentence of greater length than the offence warrants: it merely disentitles the defendant to the measure of the leniency which would normally be given to a person of previous good character or a person without a prior criminal record ( R v Hall (1974) 1 Cr R App R (S) 27; R v Galloway (1979) 1 Cr App R (S) 311; R v Loosenoore (1980) 2 Cr App R (S) 72; R v The Queen (1981) 3 Cr App R (S) 245). 47 I respectfully agree with that approach. I also note the observation by Haylen J in par [30] of Barnard (No 2) that "The defendant, in a relatively short period of time, has accumulated a worrying number of convictions under the Act" and his observation at par [1] of that judgment that This prosecution … raises deep concerns about the capacity of a large employer in this State to take the necessary steps to comply with the provisions of the Occupational Health and Safety Act and to ensure the health and safety of persons in the workplace.

48 I would add my own deep concern to that of his Honour.

49 The approach to be taken to the question of deterrence was dealt with comprehensively by the Full Bench in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at pars [73] to [77]. In adopting the approach to deterrence laid down in Capral I note that shortly before (June 1998) the accident that is the subject of these proceedings there was a serious breach of the Act for which the defendant was prosecuted and shortly after (October 1998) there were two further serious breaches. Then again in June 1999 a further serious breach occurred. These breaches of the Occupational Health and Safety Act give the issue of specific deterrence special significance. However, it must be acknowledged that the defendant has not disregarded its obligation to make its workplaces safe and the evidence shows that it has undertaken a sweeping review of its occupational health and safety policies and procedures. In the process of doing so the defendant has sought to make significant improvements on the advice of experts. The process of change in respect of the introduction of new occupational health and safety measures is continuing and it was Mr McDonald's evidence that since the introduction of amended safe working units and network rules and procedures there has been a significant decrease in the number of workplace injuries. It can only be hoped that trend will continue.

50 In the absence of the fundamental and comprehensive changes initiated by the defendant to improve its occupational health and safety regime, the need for specific deterrence would have demanded higher penalties than those that I intend to impose on the defendant. But given the nature and extent of the changes, and what I regard as a genuine effort to improve the safety culture within its operations, any penalties imposed must recognise that effort. To do otherwise would be to discourage the defendant from doing all that was reasonably practicable to ensure the safety of persons in respect of whom it has a responsibility under the Occupational Health and Safety Act.

51 The defendant submitted that as a result of the McInerney Inquiry the RSA was dissolved and the Chief Executive is no longer with the organisation. It was contended this should be taken into account when the Court considers the issue of specific deterrence. In this respect I agree with Haylen J when he said in Inspector Vierow v Rail Infrastructure Corporation at par [70]: 70. I am not able to accept the defendant's submission that it has already been punished to a significant extent by having a previous corporate structure dissolved and a previous Chief Executive Officer removed. It is undoubtedly correct that those developments took place in the wake of a serious accident at Glenbrook and in the context of a loss of confidence in the safety of the railway system operating in New South Wales. I do not, however, regard those changes, which are not extraordinary in the provision of Government services, as equating with a penalty imposed for the same detriment to safety such as to be taken into account in reducing the appropriate penalty to be set in relation to this particular incident and the risks to safety it demonstrated. For the same reason, I reject the submission that equates the imposition of a penalty in this matter with the notion of double jeopardy accepting, as I do, that such a submission was put by way of analogy. Nor do I accept the submission that the legislative changes have effectively left the defendant with a "clean slate" - it is clear from the transitional provisions accompanying these legislative changes that the liabilities of the former statutory bodies have become the liability of the new statutory entities. In such circumstances there is no room for treating, even on some notional basis, the present defendant as having effectively no previous convictions or no previous record of inadequate systems of safety. 52 As to general deterrence, the Full Bench said in Capral at par [75] "The need for general deterrence in relation to serious offences under the Act is undeniable." In my opinion, given the seriousness of the offences in this case, a penalty at the low end of the scale would be quite inappropriate. It would, especially given the criminal record that the defendant has accumulated for serious breaches of the occupational health and safety laws, send the wrong message to large corporations about the seriousness with which the community regard such breaches.

53 Finally, in relation to the objective seriousness of the offences, the maximum penalty for each offence is $825,000. The maximum penalty for an offence reflects the 'public expression' by Parliament of the seriousness of the offence: R v H (1983) 3 A Crim R 53 at 65 and a large penalty indicates 'the gravity of the offence …': Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. As Wright J, President said in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No2) (2000) 99 IR 163 at 186: The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum.

54 The conclusion that the offences were objectively serious is inescapable and I so find. I consider the offences attract penalties in the mid to high range. There are a number of subjective factors, however, that I am bound to take into account in mitigation.

55 There was no challenge by the prosecutor to the submission by the defendant that it had fully cooperated with the WorkCover investigation and I accept that was the case. I note that all of the workers involved in the events of 18 August 1998 were offered counselling by the defendant for as long as they required this service.

56 It is also important that in considering penalty that I take into account the quick responses by the defendant to the accident and the remedial measures put in place. The measures were identified earlier in this judgment. I have already referred to the steps taken by the defendant in reviewing and revising its occupational health and safety policies, practices and procedures and the extent to which these should be taken into account in assessing penalty. I have also had regard to what I consider to be the defendant's commitment to improve what has been a terrible safety record.

57 I have already referred in this judgment to the defendant's prior criminal record. It is on the basis of the earlier discussion that I have taken that record into account. I should add that in assessing the prior record of the defendant, I have had regard to the large number of employees and the nature of the work carried out by the defendant: WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of NSW [2000] NSWIRComm 179 at par [47]; WorkCover Authority of New South Wales (Inspector Piggott) v Capral Aluminium Ltd (1998) 83 IR 211.

58 The defendant entered pleas of guilty to both charges. The prosecutor contended that the pleas were entered on "about the day of the contested hearing being due to take place." Some 10 days had been set down for the hearing of both charges. Mr Millar submitted that the pleas were entered in circumstances where the prosecution's case was a strong one. Mr Gleeson for the defendant submitted that the prosecutor was invited to a meeting with the defendant on 13 December 2001 to discuss an offer of a plea of guilty but apparently that did not occur. In the result, after much correspondence between the parties the pleas were not entered until 16 April 2002. Mr Gleeson also contended that the defendant had originally been charged with four or five offences but these were eventually reduced to two.

59 I note the summons prosecutions were filed on 18 August 2000. Pleas of not guilty were entered on 10 May 2001 but these were changed to guilty on 16 April 2002. Notwithstanding what Mr Gleeson had to say, it could not be said that the guilty pleas were made early. Moreover, it seems to me that they were made in the face of a strong prosecution case.

60 It is necessary that the Court apply the totality principle. The principle was discussed at some length by the Full Bench in Crown In Right Of The State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181. In that case the Full Bench also considered the relationship between ss 15 and 16 of the Occupational Health and Safety Act. The Full Bench in Keenan referred to Pearce v The Queen (1998) 194 CLR 610 at 623 where McHugh, Hayne and Callinan JJ stated the totality principle as follows: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. (Emphasis added.)

61 I also note what the Full Bench said in Warman International Ltd v WorkCover Authority (NSW) (Inspector Ankucic) (1998) 80 IR 326 at 339 that "the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high".

62 In approaching the question of totality, I have found the approach taken by Hungerford J in WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd t/a Transfield Maintenance (No 2) (2001) 110 IR 160 at 177 to 180 to be most helpful and I have adopted it here.

63 In these proceedings the defendant has been charged under ss 15(1) and 16(1) of the Act. The charge under s 15(1) was in respect of three employees and the main particular referred to the defendant's failure "to provide or maintain safe access to and egress from the place of work for its employees to ensure the safe passage of employees in vehicles when travelling though the railway cutting on the running Sandy Hollow-Kerrabee railway line." The charge under s 16(1) was in respect of four persons not in the defendant's employment and the main particular, again, referred to a failure to provide safe access and egress.

64 The essential particulars of both charges are the same; the main difference between the charges being that one was in respect of three employees and the other was in respect of four non-employees. If all persons had been employees of the defendant then, it seems to me, only one charge under s 15(1) would have been necessary and if all persons had been non-employees the defendant would have only faced one charge under s 16(1).

65 I assess the objective seriousness of each of the offences as being of equal value and I consider the offences attract penalties in the mid to high range. That results in a fine of $450,000 for each offence, being a total of $900,000 for both offences.

66 R v Sharma [2002] NSW CCA 142 declared that, notwithstanding the High Court's decision in Cameron v The Queen [2002] HCA 6, R v Thompson; R v Houlton (2000) 49 NSWLR 383 to be still in full force and effect and it, therefore, must be followed.

67 In the guideline judgment of R v Thomson; R v Houlton, Spigelman CJ (with whom Wood CJ at CL, Foster A-JA, Grove J and James J agreed) concluded at 419 in pars [160] and [162]): (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. ... ... The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. In so far as existing sentencing practice has been to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, such a practice remains appropriate.

68 Allowing for the pleas of guilty, I would allow a discount of 10 per cent, with a further discount of 10 per cent for the other subjective factors I have referred to. That is, a discount of $90,000 for each offence so as to result in a fine for each offence of $360,000 thus giving a total of $720,000 for the two offences charged.

69 I consider a further adjustment is necessary to recognise the totality principle because, in my view, a total fine of $720,000 where the elements of the two offences were common would be excessive and would result, unless adjusted, in the defendant being penalised twice for the commission of common elements. In my opinion, both charges should be considered as if they constituted one offence so that an appropriate total or cumulative sentence for both offences would be an amount of $360,000. I would apportion that total amount as to $180,000 for each offence by adopting the preferred course, as stated by the Full Bench in the Crown In Right of The State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at 194 in par [29]), of fixing separate penalties after the principle of totality had been applied.

70 Mr Millar sought a moiety of the fines and I will so provide. As to costs, Mr Millar sought an order that the defendant pay the prosecutor's costs and I will so provide.

Matter No IRC 4151 of 2000 1. The offence is proven and a verdict of guilty entered. 2. The defendant is convicted of the offence charged. 3. The defendant is fined an amount of $180,000 with a moiety to the prosecutor. 4. The defendant is to pay the prosecutor's costs as agreed or, failing agreement, as assessed.

Matter No IRC 4152 of 2000 1. The offence is proven and a verdict of guilty entered. 2. The defendant is convicted of the offence charged. 3. The defendant is fined an amount of $180,000 with a moiety to the prosecutor. 4. The defendant is to pay the prosecutor's costs as agreed or, failing agreement, as assessed.

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