Inspector Ankucic v Hy-Tec Industries Pty Ltd

LEGISLATION CITED: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Department of Mineral Resources v Berrima Coal Pty Ltd & Ors (2001) 105 IR 348 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Jones v Buddy Charbel Challita; Inspector Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 CASES CITED: Morrison v Powercoal Pty Limited (2003) 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Previtera (1997) 94 ACrimR 76 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v S Y & Anor [2003] NSWCCA 291 R v Way (2004) 60 NSWLR 168 Sullivan v R [2008] NSWCCA 296

Prosecutor: Ms P.E. McDonald of counsel Solicitors: Ms Elenka Haigh WorkCover Authority of NSW LEGAL REPRESENTATIVES:

Defendant: Solicitors: Mr M. Harmer Harmers Workplace Lawyers

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

1 This prosecution is brought by Inspector Ankucic of the WorkCover Authority of New South Wales against Hy-Tec Industries Pty Ltd (the defendant) under s8(1) of the Occupational Health and Safety Act 2000 (the Act) by way of an Amended Application for Order. 2 It is alleged the defendant, on 22 May 2006, contravened s8(1) of the Act in that it failed to: Ensure the health, safety and welfare at work of all its employees, and in particular Michael Dring, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

In particular: (a) At all material times, the defendant was a body corporate entitled to sue and be sued in and by its own corporate name and style. (b) At all material times, the defendant was an employer and employed persons at the premises. (c) At all material times, the defendant employed Michael Dring as a yardman/front-end loader operator at the premises. (d) The defendant failed to provide a safe system of work at the premises to ensure that employees operating mobile plant were isolated from tip-truck type trailers tipping raw material in that: (i) the defendant failed to provide and/or maintain a formal exclusion zone in the vicinity and at the time of tip-truck type trailers tipping raw materials at the premises; and (ii) the defendant failed to ensure that an adequate traffic and mobile plant management system was in place at the premises at the time of tip-truck type trailers tipping raw materials at the premises.

(e) The defendant failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety at work of its employees in that: (i) the defendant failed to provide adequate instruction and supervision to its employees regarding exclusion zones during tip-truck type trailers delivering raw materials; (ii) the defendant failed to provide adequate instruction and supervision to its employees regarding communication between the drivers of tip-truck type trailers and employees at the premises including the yardman, Michael Dring.

(f) The defendant failed to ensure that access to the premises was safe and without risks to health of its employees in that the defendant failed to ensure safe access procedures for tip-truck type trailers delivering raw material to the premises. (g) The defendant failed to conduct a proper risk assessment with respect to tip-truck type trailers tipping raw material at the premises.

As a result of the abovementioned failures, Michael Dring was placed at risk of injury and was fatally injured. 3 The defendant pleads guilty to the charge. 4 Ms P.E. McDonald, of Counsel, appeared for the prosecution and Mr M. Harmer, solicitor, appeared for the defendant. The prosecution relied upon an amended Statement of Agreed Facts, Diagrammatical representation of the Hy-Tec premises at 10 Bearing Road, Seven Hills, NSW as at 22 May 2006, Factual Inspection Report of Inspector Rosmund Schuman dated 24 July 2006, Factual Inspection Report of Inspector Maree Davidson dated 21 July 2006, Photographs taken by Inspector Rosmund Schuman dated 22 May 2006 and 25 May 2006, Photographs taken by Inspector Maree Davidson dated 22 May 2006, an Engineering report prepared by Mr Russell Findlay dated 27 May 2009, Accident Survey Report prepared by Philip Hayward, Registered Surveyor of Lean & Hayward Pty Ltd dated 3 August 2006, WorkCover Archived Safety Alert entitled "Tip Truck Trailers, Safety Alert No: 4026", dated 20 December 1994, Hy-Tec Job Safety Analysis ("JSA") and associated Safe Work Instructions for front-end loader operation, Work Instructions and Job Safety Analysis Worksheets prepared by Kalari Pty Limited, WorkCover Prohibition Notices (7-108961 and 7-108963) issued by Inspector Maree Davidson on 22 May 2006, Hy-Tec Industries risk assessment entitled "Raw Materials Hazard Identification, Seven Hills Plant, Preliminary" dated 1 June 2006, ASIC Company Search for Hy-Tec Industries Pty Limited dated 2 July 2009, a Chronology and a Record of Interview dated 7 August 2006 between Inspector Ankucic and Mr Paul Abdilla, Concrete Plant Manager with Hy-Tec Industries. 5 The defendant relied upon an affidavit of Mark Nykiel, General Manager of Hy-Tec Industries Pty Ltd at the time of incident sworn 2 July 2009 and Kelvin Lee Tipplady, Regional Health Safety Environment Manager, Victoria, NSW and Qld for Adelaide Brighton Limited affirmed 3 July 2009. Mr Tipplady was cross examined. A number of relevant documents were attached to the affidavits including documents in relation to the investigation of the incident, the upgrading of the system of work for cleaning the Economiser addressing access and egress to the Economiser and the platform at height and temperatures of the dust. 6 The Agreed Statement of Facts as amended relevantly reads: 3. At all material times, the defendant carried on the undertaking of manufacturing, selling and delivering of pre- mix concrete. 4. At all material times, the defendant operated 8 concrete batching plants across Sydney, including premises at 10 Bearing Road, Seven Hills in the State of New South Wales ("the premises"). 5. The premises comprised a concrete batching plant with an adjacent yard for the delivery and temporary storage of raw materials used in the cement manufacturing process. Annexed hereto and marked with the letter " A " is a diagrammatical representation of the premises as at 22 May 2006. 6. As seen in Annexure "A", the batching room was located next the entry/exit gates to the premises. The delivery section of the yard comprised two main sections paved with concrete slabs, namely a long driveway where tip truck type trailers could be parked off the road and a tipping (or loader) area. Concrete walls at the rear of the yard separated four storage bins, which were used for the temporary storage of the different types of raw materials used in the concrete manufacturing process. These walls were used to prevent cross contamination of the various raw materials used in the concrete manufacturing process including sand, fly ash and different sizes of crushed rock aggregate (blue-metal). 7. The defendant had an on-going contractual relationship with RMQ Contracting Pty Limited ("RMQ") to provide transport services, including the delivery of raw material to the defendant's premises across Sydney. The defendant also received raw materials from a number of other contractors including PF Transport Trust, Kalari Pty Limited and Cefia Transport Pty Ltd under similar contractual arrangements. 8. The contractors delivering raw materials utilised various types of tip truck type trailers including chassis and rear axle tip over semi trailers and truck and dog configurations. 9. At all material times, the defendant employed the following persons to perform work at the premises: i. Michael Dring employed as a yardman; ii. Freddy Gando employed as a batcher in the batching room; and iii. Graham Turner, employed as a concrete agitator driver. 10. At all material times, the defendant engaged the following persons as contractors working out of the premises: i. Steven Pellagreen, self-employed owner-driver contracting solely to the defendant; ii. Matthew Reid, sub contractor providing on call labour including vehicle driving and yardman duties to the defendant; and iii. Paul Apps, employee of PF Transport, delivering quarried materials to the defendant. 11. Mr Dring was initially employed by the defendant as a driver and relief yardman from 1 July 1999 to 17 January 2003. He was then re-employed by the defendant on 25 January 2005. During the second term of his employment Mr Dring's primary duty was to operate a front end loader to transport and load various materials used in the concrete manufacturing process. Mr Dring was also required to perform other duties including cleaning the yard area, conducting basic plant maintenance and overseeing deliveries of raw materials.

The Incident on 22 May 2006 12. On 22 May 2006, Mr Dring was undertaking his duties as yardman/front-end loader operator at the premises. Mr Gando was working as the batcher in the batching room. In this role Mr Gando was responsible for the operational side of the concrete manufacturing process, which included receiving delivery tickets, batching concrete and controlling administrative duties related to the plant. 13. Bradley Quinlan, a driver for RMQ, arrived at the premises at approximately 9:00 am. He was driving a Kenworth prime mover (Registration RMQ 026) which was attached to a rear axle tip-over tri-axle TEFCO trailer (Registration # J 91329). This was his second delivery to the premises that day. He parked his vehicle outside the premises and walked to the batching room. Mr Gando signed the quarry docket and Mr Quinlan checked that there were no other vehicles delivering raw materials and then returned to his vehicle. He then drove up to the gate and reversed his vehicle into the premises parking it in the gateway as you face Bearing Road from the premises. 14. Mr Quinlan then waited for Mr Dring who was operating the front end loader, to finish pushing up the previous load and move away from the tipping area. Once the loader was out of the tipping area, he proceeded to reverse into the appropriate bin area to off load his delivery. Mr Quinlan had not received a hand signal from Mr Dring prior to entering the delivery area, which was the usual procedure at the premises. In relation to his first load of the day, Mr Quinlan did however receive a hand signal prior to entering the yard area. 15. Once in place, Mr Quinlan climbed out of the cab to open the rear tailgate by hand, carried out a visual check for vehicles and pedestrians in the tipping area and then returned to the cabin of the prime mover. Once he was back in the cabin he engaged the power take off mechanism causing the trailer to rise. He remained in the cabin, with the doors shut and window open and continued to check the left and right mirrors as the trailer was rising. He was not able to check out of the back window of the Prime Mover as it was blacked out. Just as the trailer reached its highest level the vehicle toppled over to the left pulling both the trailer and prime mover onto the side. Mr Quinlan shut off the Prime Mover's engine and exited the driver's cabin through the open window. It was only when he was outside the cabin that he realised that the front-end loader was lying under the trailer. He then jumped off the cabin door and shut off the front-end loader's engine. 16. There were no witnesses to the actual incident other than Mr Quinlan. 17. Mr Graham Turner was standing on an elevated walkway at the batching tower (on the other side of the premises) overlooking the entire premises at the time of the incident. While he did not see Mr Quinlan's vehicle topple over, he did hear the vehicle crash. Mr Turner ran to Mr Gando in the batching room and told him to call an ambulance. 18. Mr Steven Pellagreen also heard and felt the impact of the vehicle overturning. Mr Pellagreen had reversed his truck under the load bay at the batching tower and was in the process of checking that it was in the correct position for loading when he heard a load cracking noise. Mr Pellagren went to Mr Dring's assistance and remained with him until the ambulance and paramedic officers arrived. 19. Mr Dring died as a result of the injuries sustained when the front-end loader he was operating was crushed by the RMQ rear axle tip over semi trailer that toppled during unloading. Investigation of the Incident 20. On 22 May 2006 Inspector Rosmund P. Schuman and Inspector Maree Davidson attended the premises and made observations contained in Factual Inspection Reports dated 24 July 2006 and 21 July 2006 respectively. Annexed hereto and marked with the letter " B " is a copy of the Factual Inspection Report of Inspector Schuman dated 24 July 2006. Annexed hereto and marked with the letter " C " is a copy of the Factual Inspection Report of Inspector Davidson dated 21 July 2006. 21. During the course of their inspections at the site, Inspector Schuman and Inspector Davidson took a number of photographs. Annexed hereto and marked with the letter " D " is a copy of the photographs of Inspector Schuman dated 22 May 2006, together with subsequent photographs dated 25 May 2006. Annexed hereto and marked with the letter " E " is a copy of the photographs of Inspector Davidson dated 22 May 2006. 22. On 10 July 2006 State Inspector Petar Ankucic assumed carriage of the investigation. 23. Inspector Ankucic engaged Mr Russell Findlay, consultant engineer of R.K Findlay Pty Ltd Consulting Engineers. Annexed hereto and marked with the letter " F " is a copy of the engineering report prepared by Mr Findlay dated 27 May 2009. 24. On 26 July 2006, Inspector Ankucic engaged Philip Hayward, Registered Surveyor of Lean & Hayward Pty Ltd to prepare a survey report of the raw material tipping area of the premises. Annexed hereto and marked with the letter " G " is a copy of the report prepared by Mr Hayward. The results of the report state that over the majority of the yard falls did not exceed 2%, which is defined under the Australian Standards as "flat". The report also stated that the area in front of the bins was up to a 5% slope which is typical for a truck tipping area. 25. After the incident, Inspector Schumann provided the defendant with an archived safety alert that had been prepared by the WorkCover Authority of NSW. Annexed hereto and marked with the letter " H " is a copy of the archived safety alert entitled "Tip-Truck Trailers, Safety Alert No:4026". 26. Transport contractors interviewed during the investigation indicated that there was an awareness in the transport industry of tip truck type trailers becoming unbalanced and tipping over in certain circumstances in accordance with this Safety Alert. Access to the Premises 27. The defendant's premises had three entrances at the time of the incident. The gates to two of these entrances were left open during the hours of operation of the plant and vehicles could enter the premises unchallenged. 28. The design of the batching room allowed a restricted view of the premises. As such, the batcher could not see vehicles at the entry/exit points when in the batching room. Also, the batcher was not required to and had no means of informing the yardman of the arrival of a delivery truck unless he left the batching room unattended. The entrances were however visible from all other areas of the premises. 29. The defendant had procedures in place for the raw material delivery drivers. The procedures were verbally provided to the delivery drivers. All delivery drivers were required to report to the office/batching room on arrival to get a signature on their paperwork from the batcher. Once they had obtained the signature, the drivers were in the control of the yardman. 30. The defendant's premises access procedures then required all drivers to get clearance from the yardman before entering into the yard area. The drivers were required to wait until the yardman gave them a signal (usually a hand or verbal signal) that it was safe to enter the premises and tip their load. The yardman would only give the signal to enter once he had returned to his safety area away from the tipping zone. 31. However, the delivery drivers did not always follow the access procedures for delivering raw materials. Furthermore, the defendant did not take sufficient steps to ensure that the access procedures were always followed.

Systems of Work Prior to the Incident 32. The defendant had an OH&S Management System in place prior to the incident on 22 May 2006. The system comprised various items but also included specifically some Job Safety Analysis ("JSA") and associated Safe Work Instructions for front end loader operation. Annexed hereto and marked with the letter " I " are copies of these JSA/SWI for the premises. 33. The system, policies and procedures were made known to the employees through the defendant's safety committee and at plant level through tool box talks. 34. The JSA's referred to above were one form of risk assessment but proved inadequate in relation to the work undertaken by its contractors of raw material tip truck type trailers tipping raw material at the premises. The JSA's referred to above did not address the task of delivery and/or tipping raw materials at the premises. 35. The defendant did not require its contractors delivering raw materials to its premises to provide it with a risk assessment of the tasks associated with the delivery of raw materials to all of its plants. 36. One contractor, Kalari Pty Limited, provided information in the form of a Job Safety Analysis ("JSA") Worksheet to the defendant in relation to the delivery of flyash at the defendant's Seven Hills and Auburn plants and other raw materials at the defendant's Plumpton plant. Annexed hereto and marked with the letter " J " is a copy of those JSA worksheets. 37. The initial JSA in relation to the tipping of raw materials at the defendant's Plumpton plant prepared on 10 August 2005 identified as hazards the potential for a collision with other vehicles or pedestrians, potential dust exposure and a potential slip / trip hazard. Each of these hazards were assessed as low risk. 38. On or about 21 November 2005 at the defendant's premises in Plumpton, a truck and dog trailer rolled over whilst it was in the process of tipping. The driver had backed the truck up to a ramp in a jack-knifed position and as the driver attempted to tip the dog trailer, the trailer lost balance and rolled over. 39. Following that incident, on 23 November 2005, Kalari provided an updated JSA worksheet which in addition to the identification of the above hazards in relation to unloading of product also identified "the potential to tip rear trailer when tipping on a ramp". This hazard was similarly assessed by Kalari as "low". 40. The defendant did not provide or maintain a formal exclusion zone to delineate the tipping area and isolate employees from raw material tip truck type trailers during the tipping process. 41. There were no physical barriers to prevent delivery trucks entering the yard. Further there were no physical controls or other means in place to restrict access to the tipping area within the yard while trucks were tipping raw materials. 42. There were no adequate warning signs or barriers to alert employees that the tipping operations were in progress. 43. The defendant did not provide or ensure that an adequate communication system or communication mechanisms were in place for communication between employees at the premises (such as the front-end loader operator and yardman) and tip truck type trailers delivering raw materials. 44. The yardman's duties were not confined to marshalling delivery drivers into and out of the yard and overseeing deliveries; but included clearing the yard with a front-end loader. The defendant employed Mr Dring as a yardman but did not ensure that there was adequate vehicle marshalling procedures in place at the premises when Mr Dring was occupied pushing raw materials into the bins with the front-end loader.

Information, Instruction, Training and Supervision 45. Prior to the incident, whilst it is acknowledged that the defendant did provide various OH&S related training to its employees, the defendant failed to provide adequate training to all its employees with respect to safe access procedures. 46. The defendant did not provide adequate information and instruction in relation to delivery procedures and tipping operations at the premises. For example prior to the incident the defendant did not provide adequate instructions or information regarding exclusions zones in the tipping area. 47. The defendant did not provide adequate information or instruction with respect to the hazards associated with the tip truck type trailers tipping raw materials at the premises and in particular with respect to the risk of being struck by a tip truck type trailer during the delivery or tipping process or the risk of tip trucks rolling over during tipping operations. 48. The defendant did not provide any adequate instructions with respect to the use of communication systems at the premises. 49. At the time of the incident there was inadequate supervision of delivery drivers to prevent drivers from tipping their loads without the authorisation of the yardman/front-end loader driver. 50. At the time of the incident the supervision of Mr Dring was also inadequate. Paul Abdilla, Concrete Plant Manager, was Mr Dring's direct supervisor when present at the premises. In Mr Abdilla's absence, Fred Gando was Mr Dring's supervisor. However at the time of the incident Mr Gando was working inside the plant control room and could not see the yard area . Mr Gando was neither employed nor remunerated as a supervisor.

System of Work Following the Incident 51. On 22 May 2006 Inspector Maree Davidson issued several Prohibition Notices upon the defendant, including Prohibition Notice (7-108961) which required the defendant to ensure the health and safety of employees and other persons by developing a safe system of work that ensures no interaction between semi trailers and front-end loaders, forklift trucks and/or industrial trucks whilst tipping activities are occurring in the batching yard. Annexed hereto and marked with the letter "K" are copies of the Prohibition Notices dated 22 May 2006. 52. Following the incident, the defendant conducted an investigation into the circumstances leading to the death of Mr Dring . The defendant also conducted a risk assessment with respect to the delivery of raw materials at the premises. Annexed hereto and marked with the letter "L" is a copy of the risk assessment dated 1 June 2006. 53. As a result of the investigation and risk assessment, the defendant undertook a number of measures to control the risks associated with the delivery of raw materials to the premises including: i. implementing an interim safe work practice reinforcing existing procedures relating to front end loader safety zones and trained all employees and contractors in that process; ii. clearly marking formal exclusion zones on all tipping areas; iii. banning semi trailers tippers for deliveries at all Hy-Tec premises; iv. modifying plant signage and traffic management plans to reflect the formal exclusion zones. v. notifying all transport operators of the requirement for retraining as well as all Hy-Tec plant employees vi. re-inducting all RMQ employees and all other delivery contractors; vii. investigating engineering options to prevent truck roll over, which were ultimately considered unsuccessful; viii. fitting the front-end loader with a UHF radio so the operator is able to communicate with the drivers of the tip trucks; ix. working with relevant industry bodies to communicate the outcomes of the incident across the industry. Co-operation with WorkCover 54. The defendant co-operated with WorkCover during the investigation, The Defendant 's Criminal History 55. The defendant has no prior criminal convictions in NSW.

Relevant Principles 7 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 and 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). 8 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such element ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 10 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. Of relevance particularly is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999.

Consideration 11 In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474): 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" ... And in Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 12 In assessing the objective seriousness of the offence the prosecutor asserts, in accordance with the particulars relied upon, the offence can be placed into three categories, namely: the failure to comply with a system in place when a tip truck trailer was tipping raw materials at a premises; the failure to provide safe access to the site where the task was to be performed; and the failure to appropriately risk assess the task. 13 It was a known risk in the transport industry that trucks tipping out a "slippery" load could overbalance. Officers of the defendant assert they were not aware of the risk when this type of vehicle was delivering raw materials on a flat surface. However, evidence revealed at this site, but with another contract driver in November 2005, another truck with a dog trailer had tipped, although the circumstance was slightly different in that the driver had placed his truck in a jack-knife position beside a ramp. A trailer operation is affected by the nature of the load. If a trailer is tipping a "slippery load", it is known in the industry that in the tipping exercise, such loads do not always slide evenly out of the truck, whether the ground surface is even or uneven. 14 The essence of the breach was in tipping a "slippery" load, care must be taken to ensure no vehicle, be it the trailer or the truck, overturns. The defendant asserts it had in place a system of work at the time of the incident on 22 May 2006 and although it cannot produce documentation in support of that system, it relies upon the documentation of one of its contractor's and its Job Safety Analysis (JSA) as providing evidence that its system did exist. While the defendant had no recorded system of work, it did hold some JSAs in its system, but those did not identify the particular task. 15 I accept as to access onto this worksite, there was a system in place which required a signal from the yardman to enter the premises. However, the yardman, as part of his duties, was on a front-end loader. He had to place his vehicle in a defined safe area before the tip truck was to advance onto the site to tip its load. However, this system was not adhered to on the relevant date. While the driver of the front-end loader was sighted as moving his front-end loader to the safe area a presumption was made by the driver of the tip truck that he was therefore away from the area in which he was required to tip his blue metal load and it was therefore safe to unload the blue metal. His load, however, was a slippery load and when he began the tipping operation, his truck unbalanced, fell over and crushed the front-end loader which was not out of the danger zone when the full trailer tipped. The driver of the front-end loader was fatally injured. He was an employee of the defendant. 16 While the defendant had identified the risk of "other vehicle collapse with park FEL, the control measure is for the FEL to be parked in the designated safe position on the site" this warning did not deal with the risk associated when a driver chose to bring his load on to the site and begin to tip the load before all vehicles had reached the defined safe areas away from his tipping operation. Further, the yardman had two conflicting duties: he had to both signal the contract driver onto the site; and maintain a neat yard, that is, using a front-end loader. As he was working on the front-end loader, the contract driver came onto the site. The system failed and part of the failure was the system itself. 17 The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: "… reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. . . . 18 Given the lack of appropriate procedures in place on this site, I consider this to have been a foreseeable offence. The defendant had knowledge of the risk of trucks tipping on its work site (the November 2005 evidence) and, even accepting it had a system in place which was not properly documented, it failed to ensure that system was properly enforced. The front-end loader had not advanced to the safe area before the tip truck attempted to unload. The yardman was not able to control entry on the site because of his other duties. 19 There was, however, I accept, a contribution to this risk from a third party. The prosecutor has not commenced proceedings against another entity. The absence of a prosecution is not relevant to a consideration as to penalty for the breach, but it is relevant to the culpability of the defendant (Department of Mineral Resources v Berrima Coal Pty Ltd & Ors (2001) 105 IR 348 per Walton J, Vice-President). Further evidence revealed the driver of the tip truck had blacked out his rear window. Had that rear window not been blacked out he could have seen the front-end loader was still beside his vehicle and had not reached the defined safe area. Presumably, he would not have started to tip the load. Further contractors under the system had to report to the yardman and sign in for site entry and this did not occur. There was in the circumstance, a contribution to the risk from a third party. 20 The availability of simple and straight forward steps to remedy the difficulties in the system is also relevant to the consideration of the objective seriousness of the offence. There were obvious steps which could have been taken which either singly or in combination would have eliminated or reduced the identified risk. These steps have now been implemented. Such activity after the incident is indicative of the fact that each amendment of the system of work was readily available and practicable before the incident. 21 The gravity of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant. (Lawrence Diecasting Limited and WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of an employee driving a vehicle which had not reached a safe area before a tipping operation began. The occurrence of this death manifests the degree of seriousness in the relevant risk to safety. 22 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71]-[77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: . . . 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 Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 23 A rigorous approach is needed to safe working procedures by all employers in both the trucking and construction industry. Each conduct dangerous, but industrially necessary operations and many of their tasks need meticulous co-ordination. This breach demonstrates the need for co-ordinated safe working procedures between employers on the same worksite, as is so often the circumstance in heavy industry operations, to ensure each of their employees is assured of a safe working environment. An element of general deterrence is necessary in the consideration as to penalty for this breach. 24 The defendant's site at Seven Hills has closed down due to the downturn in the construction industry. There is no indication the site is permanently shut. The defendant is still a significant employer in the construction industry generally and still operates in the concrete batching industry. I find there should be an element of specific deterrence in the penalty to be imposed. 25 It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way (2004) 60 NSWLR 168 at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).

Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 26 In this case, the defendant indicated a plea after five days had been set down for hearing but after an Amended Application for Order was agreed and to which a plea of guilty was then entered. However, this was a late plea. Five days of the Court time had been allocated for the hearing of a not guilty plea of which four days were vacated with only one working day's notice. The history of this prosecution and the negotiations between the defendant and the prosecution have been placed before me. I am persuaded the Amended Application for Order simply addresses matters related the particulars of the charge and could have been addressed in the Agreed Statement of Facts. 27 The plea cannot be considered an early plea. In Regina v S Y & Anor [2003] NSWCCA 291, Howie J said: [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. . . . . 28 In Sullivan v R [2008] NSWCCA 296, Howie J was taken to his comments in R v SY by the applicant to support a submission that a plea of guilty after a plea negotiation with the Crown should have attracted a greater discount for an early plea. His Honour said at [16]: . . . Clearly the applicant could have indicated a willingness to plead guilty to some charges early in the proceedings. He did not have to wait until the Crown was in a position to go to trial in order to enter into negotiations. If he chooses to wait to see what the Crown is going to do at trial then clearly the utilitarian value of the pleas is less. . , . 29 I do not consider the plea to be an early plea such as to attract a deduction in accordance with the principles enunciated R v Thomson, R v Houlton (2000) 49 NSWLR 383. Under those authorities, the defendant would be entitled to a discount for the utilitarian value of its early plea from 10 to 25 per cent. However, because of the nature of this jurisdiction some of the Court's time reserved for this prosecution has been able to be used in conciliation of industrial disputes. I will, therefore, allow a small discount of eight per cent for the utilitarian value of the plea. 30 A number of significant features were placed before the Court for consideration as to the subjective elements of the offence. I accept the defendant has appropriately expressed contrition for the events and demonstrated assistance to the family of the deceased. A company representative accompanied the police to speak to the widow. It kept in close contact with the family and encouraged its employees to so do. Given the financial constraints placed on the family as a result of Mr Dring's death, it continued to pay his insurance payments for approximately 12 months. It paid for the funeral and burial costs and arranged a Benefit Night. 31 I accept significant steps have been taken by the company through its parent company's involvement to remedy the deficiencies and prevent recurrence of the incident. It determined to prohibit the operation of semi-trailer tippers on any of its sites. It notified all of its sites as to the risk associated with the tippers. It retrained its contractors and obliged them to follow its system of work when entering its sites. 32 Hy-Tec, the defendant corporation, is but a subsidiary of Adelaide Brighton, a conglomerate with approximately eight companies under its auspices. Adelaide Brighton has now a Regional Health and Safety Manager who operates out of Victoria but is responsible for safety procedures on sites in Victoria, Queensland and Adelaide. Due to the economic circumstance, the Seven Hill site closed for some time but they still operate a significant number of sites. I accept through this Manager there is now a focus on occupational health and safety although, given the nature of his task, I would urge a more on-site assessment of operational procedures rather than a site safe system imposed generally from the head office down to various site managers. 33 The defendant has reinforced its exclusion zones and safe areas and better co-ordinated the movement of trucks on its work sites. Signage has supported this rescheduling. Delivery contractors are now inducted and have been re-inducted into redefined site safety procedures. On site UHF radios for communication between the driver and site operators have been supplied by the defendant. 34 Hy-Tec, I accept, co-operated with the WorkCover Authority in its investigation. While I do not accept there was very clear acceptance of its safety obligations on this worksite at the time of the incident, I am now persuaded there is a rigorous procedure in place for worksite safety. 35 I accept Adelaide Brighton is a good corporate citizen contributing significantly into the communities in which it operates. It supports generally various children's organisations with both financial and personnel assistance. 36 The defendant company, and its parent company which operates other concrete plants, has no prior convictions in New South Wales. 37 Two Victim Impact Statements were read to the court. The brother of the deceased read a victim's impact statement on behalf of his mother and father one on behalf of himself and his brother. He spoke of the death of their brother, their "mate" and how that death had a desolating effect on the whole family. Clearly the deceased was very much loved in a close family environment and the court extends to the family its sympathy and acknowledges the terrible impact the death of their brother had on the family. 38 In sentencing, I adopt the view expressed by Boland J, now President in Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 who determined at [43] he was "... constrained" from taking into account the contents of the victim impact statement in coming to a conclusion as to what was the appropriate sentencing. Staff J considered the effect of s28 of the Crimes (Sentencing Procedure) Act in Inspector Jones v Buddy Charbel Challita; Inspector Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385 saying at [137]: In Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182, I discussed recent decisions of the New South Wales Court of Criminal Appeal and of this Court which considered Pt 3 Div 2 of the CSP Act . I observed at [136] - [139]. [136] In light of s 28(4)(b) of the CSP Act, I do not think I am constrained from taking into account the contents of the victim impact statement from Ms Gowans in coming to a conclusion as to what is the appropriate sentence in this case. The question is whether it is appropriate to do so. I accept the general reasoning of Hunt CJ at CL in Previtera, Boland J in Foamex and Haylen J in Tomago Aluminium Co Ltd. However, the legislation does leave it open, in an appropriate matter, for the Court to consider a victim's impact statement given by a family victim. [137] Mr R Debus, Attorney General and Minister for the Environment, during the second reading of the Victims Legislation Amendment Bill in the Legislative Assembly on 21 May 2003 (at page 926) commented: On the one hand, the Government supports the admissibility of victim impact statements by immediate family members, because that provides a forum for the victim's family to assist in the healing process in the aftermath of the crime that has affected them. On the other hand, the Government agrees with the views of then Justice Hunt to the extent that, to use his words: "It is ... offensive to fundamental conceptions of equality and justice ... to value one life as greater than another". That would be the result of a harsher sentence on the accused made on the basis that, in some way, the death of a person who was, say, young and surrounded by a loving family and friends is more serious than, say, the death of a person who was alone, unhappy and elderly. [138] Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. [139] I respectfully agree with the reasoning of Hunt CJ at CL in Previtera that a court should not, in cases involving death, permit a victim impact statement to affect the sentence… 39 Hunt CJ at CL in considering the similar provision in the prior Act, in R v Previtera (1997) 94 ACrimR 76 in acknowledging a receipt of a victim impact statement he noted what was said, then commented (at 84-86): A victim impact statement was provided by the deceased's son. I acknowledge its receipt, and I sympathise with him (and with his sister) for their tragic and senseless loss. He describes his own and his sister's reactions to a the murder in moderate and compassionate terms, and I note what he has to say. Section 23C(3) of the Criminal Procedure Act 1986 (NSW) provides, however, that I must not consider that statement in connection with the punishment to be imposed upon the prisoner unless I consider that it is appropriate to do so. The legislation -- which is poorly drafted -- is nevertheless clearly wide enough to apply to the present case, where the offence involves the death of the victim but where the impact statement deals only with the effect of the death upon the victim's family. In my opinion, however, it could never be appropriate to take a statement of that nature into account in sentencing the offender in such a case. I must explain why. There is a fundamental difference -- both in law and in common sense -- between punishing the offender for his crime and compensating the victim and the others affected by that crime for their loss or injury suffered as a result of that crime. The task of the criminal court in imposing a sentence is to punish; it is not to compensate. It is, in general terms, the task of the Victim Compensation Tribunal to award compensation to the victim and to others affected by the crime for their loss or injury. The sentence imposed as punishment in any case must take into account the objective circumstances of the crime, the matters which aggravate those circumstances (or make them worse) and the matters which mitigate their seriousness. That is the framework adopted for these present remarks on sentence. The consequences of any crime upon the victim who is directly injured by it are always relevant to sentencing the offender as part of the objective circumstances of the crime, and sometimes they are relevant also in aggravation of those circumstances. A simple example will show how the maximum sentence prescribed -- and thus the yardstick by which the actual sentence must be measured -- increases according to the degree of injury inflicted upon the victim. An assault, when prosecuted by indictment, carries a maximum sentence of two years. If the assault causes actual bodily harm, the maximum is five years. If the assault causes grievous bodily harm (that is, really serious physical injury), the maximum is seven years. Within those categories, the criminal court sentencing the offender would also be entitled to take into account other effects of the assault upon the victim in aggravation of the objective circumstances of the crime -- such as the fact that the offender failed to seek medical attention for the victim's injuries, or the fact that the victim had a long and painful recovery from those injuries. There are other matters which would be relevant, and I do not intend by those examples to cover the field. However, it is impossible to see how any loss or injury suffered by persons other than the victim directly injured by the crime could ever be relevant to sentencing in that way, however relevant they may be to the issue of compensation. 40 This was a serious offence where the system of work in place was not designed to ensure safe working and where I have found there was a known risk to safety in the rise of semi-trailer tipping trucks. I take into account the above contributing factors but note the penalty must reflect the objective seriousness of the offence.

41 For all the above reasons, I make the following orders: 1. In Matter No IRC 482 of 2008, I find the defendant guilty of the offence as charged.

2. The defendant is fined in the sum of $180,000 with a moiety to WorkCover Authority of New South Wales.

3. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

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