Inspector Alan Jones v Nick Kollias

Inspector Alan Jones v Nick Kollias - [2006] NSWIRComm 155 - NSWIRComm 2006 case summary — Zoe

[14]

Outcome 10. As at the date of the incident, Mr Grant had been employed by NMK for approximately 18 months. 11. At the time of the incident, employees of NMK had been engaged in digging footings and placing the dirt from the footings in the driveway at the premises. Mr Grant was asked by Mr Kollias to use the Bobcat to transfer the dirt from the ground to a truck that was approximately 30 metres away. 12. When Mr Grant operated the Bobcat, the seat belt was not used and was plugged in behind him. This had the effect of overriding the dual safety mechanism of the Bobcat, which required a person to be sitting on the seat and the seat belt to be engaged before it could be operated. As such, when travelling over the uneven surface, Mr Grant was not secured to the seat. 13. An employee of NMK, Con Quach (Mr Quach) said that the seatbelt of the bobcat did not pull out, so it was joined together on the seat, but that he did not report it to Mr Kollias as he understood that Mr Grant had already reported the matter to Mr Kollias. Mr Ebbs, also an employee of NMK, did not report this to Mr Kollias despite signing a document titled 'Plant Inspection Report' for the Bobcat dated 18 September 2003 (four days prior to the incident). Following the incident 14. Since the incident NMK has: 14.1 Ordered a replacement seat belt for the Bobcat on 22 September 2003. 14.2 Obtained an inspection report from Dayone Mech Pty Ltd on 23 September 2003. 14.3 Replaced the seat belt on the Bobcat. 14.4 Introduced a more detailed form of plant inspection report, which includes the seatbelt of the Bobcat as a category for inspection. Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

[17]

Consideration 12 In a consideration of penalty, the court must consider the objective seriousness of the offence or, as has been said, the nature and quality of the offence. The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . . 13 NMK Pty Limited is a corporation which operated in the construction industry. The defendant was the sole shareholder and director. His wife provided administrative assistance. NMK Pty Ltd is still in existence, however, it has not carried on a business since 30 June 2004 and an application has been made to strike it off the company register. The defendant currently operates two other companies, namely, NMK (Aust) Pty Ltd and NMK Plant Hire Pty Ltd, which provide a similar service within the construction industry. 14 The injured employee, Mr Paul Grant, commenced casual employment with NMK on about 2 July 2002. He was an excellent employee and was given full time work. He was operating a bobcat on the day of the incident. Mr Grant was transporting a load of soil to the back of a truck when his machine struck a ditch. He bounced forward in his chair, his feet sliding out beneath him. His left foot struck the left pedal of the bobcat and his right foot slid over the footing guard towards the bucket. The pedal having been depressed with his left foot caused the bucket of the bobcat to lower catching his right foot in its path. Mr Grant suffered crush injuries to his right foot which resulted in the amputation of his half foot and due to complications had his right leg amputated below the knee. 15 Mr Grant was not wearing a seat belt which seat belt, on the day of the incident, was secured on the seat of the bobcat behind where he sat. 16 The charge relates to the failure to ensure a system of work through training and instruction, to ensure the operator understood the imperative of wearing a seat belt for his own safety. Also relied upon was the defendant's failure through a reporting system in place, which proved inadequate, to ensure the maintenance of machinery. 17 The evidence revealed there was a system in place for the daily servicing and reporting on each machine used at the site. The defendant denies that he knew the seat belt of the bobcat was defective. He asserted the seat belt was functioning. The evidence, however, establishes that before the incident the seat belt was sticky on retraction. On the day of the incident Mr Grant was driving the bobcat with the seat belt joined and fixed behind him on the seat. The fact that the seat belt was connected behind him is relevant as by connecting the belt it had the effect of overriding the dual safety mechanism of the bobcat. The seat belt had to be engaged before the machine could operate.

[20]

The risk of injury in this circumstance became a reality which reality demonstrably identifies the gravity of the risk in failing to properly maintain the seat belt of the vehicle in good working order and failing to ensure the operator used the seat belt. 21 I do not accept the proposition that because the seat belt was functioning that in any way mitigates against what was a serious offence. Seat belts are provided to ensure safety. The safety mechanism in this case was overridden given the seat belt was connected behind the driver. 22 This may appear to be a minor maintenance oversight in not maintaining a "sticky" seat belt - one with a retraction problem. However what may appear to have been a minor oversight has led to a most serious risk to safety. It was the failure to ensure that the seat belt was operating without difficulty that was causative of the risk. While the defendant may not have known the state of the seat belt, it still carried an obligation to maintain the seat belt in good working order. The maintenance system of reporting failed in the circumstance. However, having accepted there was no evidence that the employer was aware the seat belt was not being connected correctly, and accepting the retraction fault was not reported I do not believe a foreseeable element to the offence has been established. I am satisfied it was not foreseeable that the belt would be connected behind the driver while the seat belt was still functioning even if that functioning was imperfect. 23 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the Act where Hungerford J held: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: "The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive."

[21]

These principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610 [at 74] where it was said: . . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 24 It is therefore necessary in the consideration of penalty to consider both specific and general deterrence in the circumstance before me. The defendant is the current sole shareholder and director of NMK (Aust) Pty Ltd and his wife is the sole shareholder of NMK Plant Hire Pty Ltd, in which the defendant is also the director of that company. Both companies are active within the building industry and still employs in the construction industry. 25 At the time of the incident NMK Pty Ltd employed six employees and was working for a major building company preparing foundations, driveways and pathways on building sites. NMK (Aust) Pty Ltd owns and operates a number of heavy pieces of equipment. NMK Plant Hire Pty Ltd acquire, operate and hire out plant and equipment. In such a circumstance I allow an element of specific and general deterrence in the consideration as to penalty. 26 In any consideration of a deduction in penalty for the utilitarian value of a plea the following authorities guide the consideration of the court. In R v SY and Anor [2003] NSWCCA 291 the Court of Criminal Appeal stated: 86 It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis. Nor is it the case that the same discount applies to all the offences for which the offender is to be sentenced and a proper exercise of discretion requires the judge to discriminate between the offences if it is necessary to do so in order to properly reflect the value of the pleas by the discount given.

[25]

27 The defendant gave evidence and expressed his remorse. Subsequent to the accident, the defendant took the following steps: · sought advice from the Union, the CFMEU, and in particular with Mr Jason Papanou and Mr Steve Keenan (a demolitions expert within the Union). · sought advice from senior personnel within the principal contacting companies with which NMK dealt. · engaged Ms Maureen Buchtmann, a consultant expert in occupational health and safety who had previously worked for WorkCover. Ms Buchtmann was engaged to advise Mr Kollias and the company in relation to safety issues generally, and · following the advice of Ms Buchtmann he has developed a comprehensive policy and procedures Manual dealing with occupational health safety and welfare. This general manual is supplemented with site specific occupational health and safety Policy and Procedures Manual. 28 The defendant has implemented changes to previous work practices, including: · engaging outside licensed mechanics to service and repair all machinery; · developed work method statements for employees; · regular toolbox talks; · regular employee discussions on each site. These meetings are held monthly as a genal rule and are recorded; · implemented check lists using the Civil Contractors Association forms, including specific monitoring of the condition of seat belts; · required each supervisor on site to check each machine during the day to ensure proper completion of check lists and log books; and · implemented a system of immediate notification of any problems to the site supervisor and to the general office (either Mrs Kollias or an administrative assistant). 29 Further, the defendant has adopted a policy of ongoing training for employees. The various training courses which the defendant and his employees have attended were detailed in his evidence. I accept there has been a genuine endeavour to motivate in his employees an awareness of the need for safe working practices both in following safe systems for tasks and complying with reporting obligations. 30 The maximum penalty for this offence is $55,000 (s12(d) of the Act).

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