Inspector Alwyn Piggott v Kennedy Cleaning Services Pty Ltd

PROSECUTOR: Ms L McManus of counsel SOLICITOR: Mr G. Henderson PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES:

DEFENDANT: Mr B Hodgkinson of counsel SOLICITOR: Ms C MacKenzie McCabe Terrill Lawyers

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No. IRC 1376 of 2001 Inspector Alwyn Piggott v Kennedy Cleaning Services Pty Ltd. Prosecution under s 15(1) of Occupational Health and Safety Act 1983 .

JUDGMENT 1 Inspector Piggott of the WorkCover Authority of New South Wales has instituted proceedings under s 15(1) of the Occupational Health and Safety Act 1983. The Inspector alleges that the defendant, Kennedy Cleaning Services Pty Ltd, contrary to s 15(1) of the Act, on 18 February 1999 at Parramatta Park, Parramatta in the State of New South Wales, failed to ensure the health, safety and welfare of its employees at work, in particular Scott Gerrard McKenna. In particular, it is alleged the defendant failed: (a) to take adequate precautions to prevent Scott Gerrard McKenna from riding an Iseki tractor as a passenger when there was no adequate provision for the safe transport of passengers on the tractor and it was inherently unsafe for a passenger to be transported on a tractor; (b) to provide adequate warnings of the risks of a passenger riding on the tractor; (c) to provide adequate instructions prohibiting the transport of passengers on the tractor.

3 On the hearing relating to penalty the parties submitted an agreed Statement of Facts which, in relevant parts, stated as follows: 3 At all material times the defendant : (a) employed Scott Gerrard McKenna aged 27 as a qualified green keeper; (b) employed Anthony Scott Lewis ("Lewis") as supervisor at Parramatta Park, Parramatta in the State of New South Wales ("the Park"); (c) contracted with Prestige Property Services Pty Ltd ("the PPS") to provide the services of McKenna and Lewis at the Park; (d) was a wholly owned subsidiary of PPS; (e) was an employer. 4 At all material times, the PPS: (a) carried out landscape management and maintenance of parks including at the Park; (b) engaged McKenna to carry out grass slashing at the Park; (c) owned and operated an Iseki tractor registration number PVN.554 ('the Tractor") and slashing unit attached at the rear of the tractor at the Park. 5 On 18 February 1999 McKenna was slashing grass at the Park with a machine described as an F11 - 45 Outfront Slashing Mower ("the mower"). The mower that McKenna was operating blew a tyre. As McKenna was a considerable distance from a shed where there was a spare machine, he proceeded to walk towards the shed to obtain another machine to finish the grass slashing operation. 6 McKenna's supervisor, Lewis, was working in the Park slashing grass using the tractor and attached slashing unit when he saw McKenna walking towards the shed. 7 Lewis offered McKenna a lift on the tractor to the shed. McKenna climbed on to the left side of the tractor and stood on the step next to Lewis whilst holding on to the two left handed roof supports of the tractor with both hands . 8 There was no provision for a passenger to ride or be seated safety on the tractor. 9 Lewis drove the tractor towards the shed and whilst doing so encountered a gust of wind which blew off McKenna's hat . McKenna jumped off the left hand side of the tractor whilst it was still moving to retrieve his hat. 10 When McKenna hit the ground he stumbled and fell under the front of the left hand rear tyre of the tractor and attached slashing unit. As a result of this incident, McKenna suffered a fracture skull, a severed ear, a mandibular fracture, multiple rib fractures, collapsed lungs, a spinal injury, a pelvic injury, a brain haemorrhage, injuries to his left bronchial plexus, multiple lacerations to his hips, legs and back, a parlysed rectus and a parlysed nerve in the left eye. McKenna contracted golden staph after the accident. 11 On 1 March 1999 an Inspector from the WorkCover Authority of New South Wales attended upon the premises of Prestige Properties Services Pty Ltd and observed the following: (a) an Iseki tractor registration number PVN.554; (b) counter weight fitted to the front of the tractor; (c) Roll-over protection fitted to the tractor; (d) brake pedals on the tractor including locking plate in good order; (e) the tractor driver's seat was in good condition; (f) the steering linkage of the tractor was in good condition; (g) the slashing unit attached was guarded; (h) the tyres of the tractor were serviceable; (i) the tractor was diesel powered; (j) the tractor had an access step on the left hand side constructed of 200 x 150 check plates. … As a result of his observations and investigations the Prosecutor found as follows: (a) at the time of the accident, the tractor had no adequate provision for the safe transport of passengers on the tractor and was unsafe for a passenger to be transported on the tractor; (b) the Defendant failed to take adequate precautions to prevent McKenna from riding on the tractor; (c) the Defendant failed to provide adequate warnings to McKenna and Lewis of the dangers of a passenger riding on the tractor when it was in motion; (d) the Defendant failed to adequately instruct Lewis and McKenna not to transport passengers on the tractor; (e) prior to the accident, persons had ridden inside the enclosed cabin of a large blue Ford tractor in use at the Park until December 1998 or January 1999. This happened on occasions if another tractor broke down on the other side of the Park or to take staff to get another machine. Lewis had never, before the accident, given a lift to anyone on the Iseki tractor involved in the accident.

4 The WorkCover Authority, by reference to its prior convictions data base, was able to certify that the defendant had no prior convictions.

5 The defendant called Mr David Butcher to give evidence about the defendant company and PPS and also the circumstances surrounding the accident involving Scott McKenna. Mr Butcher had been the Group General Manager for PPS for six and half years and from February 1999 had been the Managing Director Eastern Region. He described PPS as being involved in building and property related services including cleaning, security, building maintenance and grounds maintenance. He said that as at February 1999 Prestige McCallum Landscape Management was the Ground Maintenance Division at PPS. PPS contracted with the defendant for the defendant to supply to PPS labour to perform landscape management and maintenance of parks including the Park and other open spaces in respect of which PPS held a ground maintenance contract.

6 Mr Butcher understood that on 18 February 1999 Mr McKenna was driving a tractor which was discovered to have a flat tyre. He was then required to walk some distance to a shed at the Park to obtain a replacement tractor. While walking to obtain a replacement tractor Mr McKenna was seen by Mr Lewis, his supervisor, who observed that Mr McKenna was in some discomfort and was holding his ribs. Mr Lewis had been told by Mr McKenna that some days before Mr McKenna had been assaulted by several men at a hotel in or near Auburn and had suffered chest injuries, possibly a fractured rib. Mr McKenna had required some time off work in the week prior to the accident but on his return to work and also on the day of the accident it appeared to Mr Lewis that Mr McKenna was still in pain and was holding his ribs. It was in these circumstances that Mr Lewis offered McKenna a lift back to the shed on the tractor that Mr Lewis was driving. On the way back to the maintenance shed the wind blew Mr McKenna's hat off and he leapt from the tractor in an apparent effort to retrieve it. As he landed he stumbled and fell under the wheels of the tractor sustaining the severe injuries referred to earlier.

7 Mr Butcher said that PPS began an investigation into the circumstances of the accident during which it was established that both Mr McKenna and Mr Lewis had contravened company safety policy in that Mr Lewis had offered and Mr McKenna had accepted the offer of a lift on the tractor. Because of the consequences of the accident its circumstances were incorporated into training sessions held thereafter by PPS. In the course of these training sessions employees are now warned of the potential for "dire consequences" should company safety policies be breached as they were said to be breached by Mr Lewis and Mr McKenna. Prior to the accident all ground staff working from PPS's Granville depot (which included all persons working at the Park) attended a four hour course for the purposes of safety training. That training programme included a module on safety aspects of the operation of tractors. Mr McKenna and Mr Lewis had attended such a course in August 1998. Mr Butcher said that prior to the accident in February 1999 Mr Lewis had undergone Occupational Health and Safety training in the course of his service with Hornsby Council and had also attended a tractor instruction course at technical college in 1980.

8 Following the investigations carried out by PPS notices are now displayed at all depots where machinery is stored and used to remind staff of the need to comply with safety procedures when handling the machinery. Both PPS and the defendant continued to analyse claims data to ensure the effectiveness of their safety programme.

9 Mr Butcher said that neither the defendant nor PPS, before or after February 1999, had an employee injured as severely as Mr McKenna. Further, since February 1999 there had been no accidents at work involving employees of the defendant or PPS or involving machinery.

10 In July 2000 PPS was awarded a self-insurance certificate following a detailed safety audit carried out by the WorkCover Authority of New South Wales which commenced early in March 1998. Mr Butcher said that WorkCover's assessment included random visits to worksites and that WorkCover was satisfied that appropriate occupational health and safety anagement systems were in place. He regarded the safety audit carried out by WorkCover as an exhaustive exercise involving review of the occupational health and safety programmes of all areas of the business of the defendant and PPS.

11 In cross-examination Mr Butcher was not able to say anything specific about the safety policy dealing with the riding on tractors which is said to have been breached by Mr Lewis and Mr McKenna. The company's records in that regard had been destroyed by an employee who was responsible for the training and who had since left its service. Mr Butcher was unaware that Mr Lewis had said in a record of interview that he had received no induction training and had received no training in relation to the safe operation of tractors from the defendant. Mr Butcher was not aware that Mr Lewis' training while at Hornsby Council was in relation to a whipper snipper safety course and was basically confined to hand tools. Mr Butcher also accepted that WorkCover's safety audit conducted for the purposes of a self-insurance certificate did not specifically relate to this accident. THE SUBMISSIONS 12 The prosecutor submitted that the primary factor to consider in relation to penalty is the objective seriousness of the offence (Fletcher Contructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77 - 81; Lawrenson Die Casting v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 474. The objective features in this case calling for the imposition of a substantial penalty were identified as follows: (a) the maximum penalty for a corporation prescribed by Parliament for the offence at the time it was committed was $550,000; (b) the need for general deterrence; (c) the nature of the offence in that it involved obvious risks; (d) the nature of the offence in that it was readily foreseeable; (e) the nature of the offence in that there were simple steps to remedy the failures; (f) the nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety.

13 It was submitted that the need for general deterrence is one of the main purposes of punishment. In support of this submission the prosecutor cited Fisher v Samara Industries Pty Ltd (1996) 82 IR 384 at 388: 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 in 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 in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Limited 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 were 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 the Parliament that the commercial standards laid down in the Act must be observed but not so high as to be oppressive . It was noted that the judgment of Hungerford J in Fisher, in relation to the question of deterrent, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation, was cited with approval by the Full Court of the Industrial Relations Commission of New South Wales in Court Session in Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at par 73 and par 74.

14 The prosecution also cited WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh and Thora Sawmilling Pty Ltd (1995) 59 IR 809 at 100 for the proposition that, when considering a statute giving expression as a matter of public policy to standards of safety, management has a positive obligation of informing itself of the circumstances of safe working. It will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible ( Lawrenson) (supra at 26). The availability of simple and straight forward steps to remedy the defects in the system also goes to the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd , unreported, Schmidt J, 25 February 1994 at 12.2).

15 The prosecutor submitted that the risk was readily foreseeable: · prior to the accident Mr Lewis had transported staff as passengers when their tractor had broken down on the other side of the park, or to take staff to another machine, albeit the tractor used had been significantly different to the tractor used on the day of the accident. In particular, staff had ridden inside the enclosed cabin of the tractor used prior to the accident; · on the day of the accident Mr McKenna's mower had blown a tyre and he was required to walk a considerable distance; · it was with this background that Mr McKenna rode the tractor which had no adequate provision for the safe transport of passengers and on which it was inherently unsafe for a passenger to be transported.

16 The prosecution also submitted that there were simple and straight forward steps able to be implemented to remedy the defects. These were:

· the defendant failed to take adequate precautions to prevent Scott McKenna from riding on a tractor and failed to provide adequate instructions prohibiting the transport of passengers on the tractor; · since the accident the defendant has developed and implemented a series of standard operating procedures, including affixing notices at all depots where machinery is stored and used; and · since the accident the defendant has included in training sessions warnings of the "potential for dire consequences …should company policies be breached".

17 The prosecution accepted that although the gravity of the injury actually resulting from the breach does not of itself dictate the amount of penalty, the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety (Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456). The injuries sustained by Mr McKenna were serious.

18 In relation to subjective features, the defendant was entitled to have taken into account as mitigating the objective seriousness of the offence its plea of guilty (R v Winchester (1992) 58 A.Crim.R 345 at 350 per Hunt CJ, Smart and Grove JJ concurring). Where the defendant enters a plea of guilty in this Court it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at par 160 and following; WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales (2000) NSWIRComm.179 at par 40). It was submitted that here the plea had been entered in circumstances where the prosecution case was strong. Where the plea had been entered into in recognition of the inevitability of conviction, the extent of leniency to be afforded by way of discount on sentence may have much less weight ( Winchester at 350: R v Ellis (1986) 2 NSWLR 604). It was conceded that the defendant was entitled to have taken into account the fact that it had no prior convictions.

19 Counsel for the defendant accepted that generally the approach of the prosecution to the question of penalty was appropriate although submitting that the relevant factors fell within a fairly small compass in this case. It was appropriate to consider firstly the nature and quality of the offence and that involved a consideration of the culpability of the defendant and there were some factors that would lessen the culpability of the defendant in this particular matter.

20 It was accepted as "an obvious proposition" that there was a potential risk to safety and a foreseeable risk if one rode on the steps of a tractor. Here the unsafe act was a relatively isolated event taking place in circumstances where the supervisor employed by the defendant departed from what would be obvious safe practices out of a concern for Mr McKenna and his apparently obvious distress arising from injuries received in a hotel fight. This was pointed to as a very limited circumstance where the supervisor tried to save the worker from walking a considerable distance because of his then disability.

The accident, however, is not one of falling off a tractor in circumstances where there was a foreseeable risk of riding on the steps, but where without notification to the supervisor the worker just "jumps off the tractor" in pursuit of his hat which had been blown off by a gust of wind. This sudden and unexpected act of which there was no notice given to the supervisor should mitigate against the finding of a significant degree of culpability on behalf of the defendant. That would translate into a conclusion that the core of this offence is not of the most serious kind and, indeed, if there had been no injury or very small injury it is a matter which one would expect to have been dealt with by the Chief Industrial Magistrate . It would be wrong in this case to elevate the seriousness of the offence by looking at the injuries first. What is required is an analysis of the particular offence which is that there should be a prohibition on people riding on the steps of a tractor because of the exposure to risk.

21 The seriousness of the offence also has to be considered in light of the supervisor's previous practice of giving a lift to other workers whilst using a different tractor which was totally enclosed and where there was no risk of falling off the tractor.

22 A further factor to be taken into account was the unusual circumstance that the employee who had previously been responsible for training the defendant's employees in safe working practices had chosen to destroy the company's records and thus the company was impeded in being able to inform the Court of the nature of its training and thereby permit an assessment to be made of its relative effectiveness. The company had been able to address this issue, albeit in an unsatisfactory manner, but taken together with the fact that there had been no other accident since February 1999 and the fact that WorkCover had conducted a safety audit in the course of the defendant's application for self insurance, raises a very strong inference that this company does have systems that operate in a safe working environment.

23 It was also relevant that the tractor had certain safety equipment. It had roll-over protection and the brakes were in good order, the seat was in good condition and the slashing unit was guarded. The tractor was in good condition and it was well maintained. Together with the WorkCover audit these matters aided an assessment and conclusion that the company does not just ignore its obligations and that it does seriously approach its obligations in relation to safety.

24 In relation to the subjective mitigating factors, the prosecution had referred to Winchester and Ellis where the strength of the prosecution case was a factor and where a plea had been entered in recognition of the inevitability of conviction leading to less weight being given to the extent of leniency to be afforded by way of discount on the sentence. Counsel for the defendant said that since the guideline ruling of the Court of Criminal Appeal in Thomson that approach had been "overcome". In Thomson the court took the view that a significant discount was available in terms of an early plea no matter what the strength of the prosecution case because the witnesses and the court are not put to the cost and inconvenience and personal distress in relation to witnesses that might have been occasioned by their being made ready for hearing and the Court allocating time for the hearing. In this case it was submitted that there was an early plea: the defendant is entitled to the maximum or very near the maximum discount available in applying the judgment in Thomson.

DELIBERATION 25 It is consistent with authority, and conceded by both parties, that the primary factor to be considered when determining the appropriate penalty to impose is the objective seriousness of the offence charged.

The defendant, quite properly, readily accepted that the riding on the step of a tractor while holding on to roof supports involved obvious risks and those risks were readily foreseeable. The worker sustained a variety of quite serious injuries. Appropriate measures to avoid the risk were available and feasible: there is force in the prosecutor's submissions on these issues. Subsequently the defendant has introduced a system of notices in the machine shop and safe practices have been emphasised in training sessions. There have been, on the evidence, no work place accidents since February 1999.

26 Mr Butcher's evidence that the two employees breached the defendant's workplace safety rules is difficult to accept. I acknowledge the problems facing the defendant when its relevant records had been destroyed, apparently without the knowledge of the defendant, but Mr Butcher's answers in cross-examination suggested that little of relevance to the operation of tractors was provided by way of prior training to the defendant's employees and in particular to the two employees involved in this incident.

27 I also have difficulty in accepting the defendant's submission that its culpability is in some way diminished because the supervisor's offer to transport Mr McKenna to the machine shed which was some distance away was prompted out of a concern for his discomfort arising from the injuries he had received in the incident at the hotel. It is an odd result for a worker's apparent discomfort to lead to a situation where that worker is exposed to a significant risk to his health and safety. Nor is the defendant's culpability diminished significantly because Mr McKenna jumped from his otherwise unsafe and precarious position without notice in an attempt to retrieve his hat. The simple fact is that riding on the side of this tractor was obviously unsafe and there was nothing about the defendant's system of work which brought home this point or prohibited such a use. The use of a tractor as a means of transport, albeit within an enclosed cabin, was a well established practice.

28 I accept as Hill J found in Tyler that the gravity of the injury actually resulting from a breach does not, of itself, dictate the amount of penalty; however the gravity or otherwise of a potential risk flowing from the breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability. (See also Capral at par 94; and the Full Industrial Court in Haynes v CI & D Manufacturing Pty Ltd and anor. [1995) 60 IR 149 at pp 157 - 158). I conclude that the breach here was serious.

29 In relation to subjective elements I agree with the thrust of the submissions by counsel for the defendant that Thomson has clarified the judgment in Winchester in the approach of a court when taking into account as mitigating the objective seriousness of the offence a defendant's plea of guilty. In Thomson, Spigelman CJ stated:

3. It has long been the practice of this Court that a plea of guilty should attract a lower sentence than would otherwise be imposed. Three reasons are usually advanced to justify the practice. Firstly, the plea is a manifestation of remorse or contrition. Secondly, the plea has a utilitarian value to the efficiency of the criminal justice system. Thirdly, in particular cases - especially sexual assault cases, crimes involving children and often, elderly victims, there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence. In Siganto v The Queen (1998) 194 CLR 656 in a joint judgment of Gleeson CJ, Gummow J, Hayne J and Callinan J, the High Court validated the long standing practice of this and other Courts … Later in that judgment the Chief Justice stated: 135 In my opinion, the significant public interests served by encouraging early pleas are such as to justify this Court indicating to the participants in the criminal justice system the extent to which benefits will accrue for an early plea, particularly from the perspective of the utilitarian consideration . 136 Separtion of the elements of the contrition and utilitarian value in the pleas of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made, as limiting the value of pleas, should be attributed to both of the elements. The Attorney-General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributable to purely utilitarian considerations. The authorities support this submission … 137 In Winchester v The Queen, Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing in which a plea of guilty affords an accused; cf R v Beavan (at 12). As his Honour put it (at 350): 'The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable'. In my opinion his Honour was correct to link the question of the strength of the Crown Case only to the issue of contritional remorse. A 'recognition of the inevitable' may qualify the extent of the genuine contrition . It does not qualify the utilitarian value of a plea.

30 In this case the defendant asserts that there was an early plea of guilty and the prosecution did not contest that assertion. As applicant, the prosecution filed for an order on 19 February 2001. The matter was listed for directions on 29 March 2001 and was listed in the Registar's callover on 3 May 2001. On two occasions, by consent, the matter was stood over for mention and on 5 July 2001 a plea of guilty was entered subject to a particular being deleted and an amended summons being submitted. The prosecution case does not appear to involve issues of great complexity but there has undoubtedly been a saving in public monies and the costs of the preparation of the case which may have occupied the parties and the Court for two or more days in contested proceedings. Applying the approach in the guideline judgment in Thomson , I would allow a discount of 20 per cent.

31 In this case there is no submission made as to the element of contrition although the actions of the defendant indicate its concern to implement a better and safe system of work. In Inspector Vierow v Blue Water Boating Pty Limited [2001] NSW IR Comm79, Peterson J did not consider contrition to be an element of significance in the particular case there being dealt with such as to justify a greater discount than 25 per cent, referring to Regina v Carter [2001] NSW CCA 245, 27 June 2001 per Howie J at par 13. That approach appears to have equal force in the present case.

32 The defendant is also entitled to have taken into account the fact that it has no prior convictions bearing in mind that it operates in an industry involving the use of machinery and the types of risks that employees and others may be exposed to if the machinery is not properly maintained and operated. Further, the evidence confirms that the machinery was in good working order, had been properly maintained and that the slasher being towed by the tractor was guarded. The defendant also took action to implement new systems directed to eliminating the risk exposed by this particular incident.

33 In the light of these considerations I convict the defendant of the offence with which it is charged and impose a penalty of $64,000 with moiety of penalty and an order for costs as agreed or assessed in favour of the prosecutor. The penalty imposed reflects the result of applying the 20 per cent discount discussed in par 30 and par 31. oo00oo

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