Inspector Barber v Hardys Pty Limited

PROSECUTOR: Ms LM McManus of counsel SOLICITORS: WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Ms PE McDonald of counsel SOLICITORS: Hunt & Hunt

JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter Number IRC 1502 of 2002 INSPECTOR MARK ANTHONY BARBER v HARDYS PTY LIMITED Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 This prosecution was brought under s16(1) of the Occupational Health and Safety Act 1883 ('the Act'). The defendant pleaded guilty to the following charge: FAILED TO ensure that persons not in its employment, in particular, Glen Roland Dunstall, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, contrary to Section 16(1) of the Occupational Health and Safety Act 1983.

The particulars of the charge are: b) Failed to provide such information, instruction, and supervision as may be necessary to ensure the health and safety of non-employees in relation to the unloading of logs including the following: (i) such information, instruction and supervision to ensure that there was adequate inspection upon the truck entering the timber mill to ensure that the logs were secured and had been loaded safely;

(ii) such information, instruction and supervision to ensure that there was adequate inspection prior, during or immediately after the driver released the load security chains to prevent a log falling on employees; (iii) such information, instruction, and supervision to protect the driver when the driver released the load security chains.

c) As a result of the Defendant's failures, Mr Dunstall was placed at risk of injury.

2 The agreed statement of facts provided: 1. At all material times INSPECTOR MARK ANTHONY BARBER , of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in the within matter. 2. In the alternative he was an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter. 3. At all material times HARDYS PTY LIMITED [ACN 000 071 705] ("the defendant"), was a corporation, whose registered business office is situated at Level 39, 50 Bridge Street Sydney in the State of New South Wales. 4. At all material times the Defendant carried on the business of saw milling and processing of radiator pine saw logs. 5. At all material times the Defendant owned Boral Timber Mill at Jingellic Road, Tumbarumba, NSW. 6. The Defendant contracted with Crozier Tumbarumba Pty Ltd (Crozier) for Crozier to supply harvesting and haulage services of pine saw logs from State Forest to the Boral Timber Mill (the Timber Mill). 7. Crozier contracted Olying Pty Ltd (Olying) to harvest the logs and load the logs. 8. Crozier contracted with Storite Pty Limited (Storite) for Storite to convey the logs to Timber Mill. 9. Approximately 40 loads of logs per day were received at the Timber Mill. 10. Storite conveyed approximately 16 loads daily to the Timber Mill. 11. At all material times Storite employed Glen Roland Dunstall as a truck driver. Mr Dunstall was employed from 7 March 2000. 12. Prior to the accident Mr Dunstall had been employed in the transport industry but not in the logging or saw milling industry. Following commencement of his employment with Storite Pty Limited Mr Dunstall attended the Defendant's site with his supervisor Michael McIntyre and received on-site training. 13. On a later occasion when Mr Dunstall attended the Defendant's site without his supervisor he received instruction as to the do's and don'ts of the mill and at the same time he received a document titled "Instruction and site rules for log truck drivers and owner representatives", which he signed. 14. On 18 April 2000 Mr Dunstall commenced work at 7 am. He drove a Mack Prime Mover, registration No SXB 735 with a blue Elphinstone trailer, to the Green Hills State Forest, in the Willigabung area at the cross roads of Baked Apple and Custard Road, in the Shire of Tumbarumba. 15. Mr James Richmond, an Operator employed by Olying, had gathered a load of saw logs and these had been placed in a stockpile beside the road. 16. Saw logs are logs of 18 centimetres in diameter or greater. 17. The logs were usually cut at lengths of 3.7 metres, 4.9m, 5.5m and 6.1m. 18. The usual procedure was to attempt to load the larger logs against the stanchions and place the logs of 3.7m in the middle. 19. Mr Richmond loaded the front bay of the trailer with pine logs using a loader (also known as forwarder). 20. Mr Dunstall then moved the truck forward and the back bay of the trailer was loaded with logs. Mr Dunstall counted the logs as they were loaded. 21. Mr Richmond was unable to see the other side of the trailer once one side had been loaded. 22. Approximately 1 to 4 logs were loaded at a time. 23. The loader was then moved out of the way by Mr Richmond. 24. Mr Dunstall secured the load by throwing chains and the one strap over the logs and tied the logs down. One of the rear front load security chains was broken and seized and had been in this condition for about 2 weeks before the accident. Therefore the front load was secured by 1 chain and a strap and the back load was secured by 2 chains. 25. It would appear that Mr Dunstall forgot how many logs were loaded after he had secured the logs so counted them again. He sprayed the logs with pink paint as he re-counted them. 26. Usually about 50 logs are loaded but because the logs were small in diameter he took 80. 27. Mr Dunstall completed Delivery Docket No 181161. 28. He then left the forest. In accordance with his usual practice he stopped the truck just before the tar road at the end of the forest and tightened the load. 29. He then drove to the Boral Timber Mill which was approximately 45 kilometres from where the logs were loaded in the forest. 30. Mr Dunstall turned right off Jingellic Road to approach the mill. There was a large log blocking the boom gate where he usually entered the mill so instead he approached the weighbridge. 31. There was a Bergins transport truck on the weighbridge blocking access. Mr Dunstall waited about 5 minutes for the truck to move. He then alighted from his truck and removed the back strap from off the front bay. He threw it over the truck from the passenger's side. It would have landed about 3 to 4 metres way (sic) from the truck. He then wound it up and got back into the truck and waited another 5 minutes until the Bergins truck drove off. It was not normal practice for drivers to release security straps prior to entering the Timber Mill. 32. Mr Dunstall drove over the weighbridge to the debarking area (or log yard) at the Timber Mill. 33. He called the loader on channel 37 and spoke to Mr Brian Cook. Mr Dunstall then parked the truck in the log yard. 34. He placed a steel bar in the chain retractor to release the tension on the chain on the front bay. Mr Dunstall had not been warned to first check the position of the logs prior to releasing the pressure on the security chains but understood that this was commonsense. 35. Mr Michael Arnold, a loader operator employed by the defendant, drove into the log yard to unload Mr Dunstall's truck. 36. Mr Arnold saw Mr Dunstall lying on his back next to the truck with a log beside him. 37. Mr Dunstall sustained a concussional head injury with a period of post traumatic amnesia which appears to have lasted several hours. There is also evidence to suggest that he sustained a concussional type of injury to his spinal cord. There is conflicting medical opinion as to the degree and extent of the injury suffered and his continuing condition. 38. During an inspection on 18 April 2000 Inspector Barber observed the following: a) A Prime Mover with NSW registration plates SXB 73 (sic). Attached to the rear of the Prime Mover was a blue coloured Elphinstone tri axle trailer with NSW registration plates G 96028. b) Logs were loaded parallel to the length of the trailer and were housed in two separate bays. Each bay of logs was held in position by four vertical stanchion posts. c) The logs in the bay closest to the Prime Mover were of various sizes ranging from between approximately 3.71 metres up to approximately 4.9 metres in length. The longer logs cradled the shorter logs, which were positioned more towards the centre of the load. d) There was what appeared to be a small amount of pink coloured paint on the end grain of the logs, at the end closest to the Prime Mover. e) The logs in this bay were held in position by four fixed vertical stanchion posts. The stanchion posts were connected at the base to a fixed bolster running across the width of the trailer. The round stanchion posts were approximately 1.72 metres in length and had a diameter of 85 millimetres. f) The stanchion posts on the offside of the trailer on the front bay were positioned at approximately 3.64 metres centre to centre at the base. g) The top of the stanchion posts on this bay measured approximately 3.73 metres centre to centre. h) The distance from ground level to the top of the stanchion post at the front bay of the trailer on the offside was approximately 3.3 metres. i) The distance from ground level to the top of the load was approximately 3 metres. j) Approximately 400 mm to the rear of the front stanchion on the offside of the front bay of the trailer was a single chain. This chain was hanging loosely and ran up and over the top of the load of logs and was attached to a ring located on the nearside of the trailer. k) There was recent damage to a weld on the end of the link of this chain on the offside of the trailer. l) Adjacent to the chain and attached to the chassis of the offside of the trailer was a load binder. There was recent damage to a weld on the drum of this load binder. m) Approximately 2 metres to the rear of the front stanchion was a second bolster running across the width of the chassis. Although no stanchion was protruding from this bolster, a load binder was attached to the side. This load binder had a flat orange belt that was fully retracted at the time of inspection. n) At the rear stanchion on the first bay was a third load binder located underneath the bolster. The chain on the load binder was retracted. No hook was fitted to the end of this chain. There appeared to be surface rust on the handle of this load binder. o) The logs in the rear bay of the trailer were also of various lengths with the longer logs cradling the shorter logs around the outside of the bay. p) The logs on this bay were held in position by four fixed vertical stanchion posts. The stanchion posts were connected at the base to a fixed Bolster running across the width of the trailer. q) Chains extended from the load security binders on the offside, up and over the load of logs and were secured to the trailer on the nearside. The front chain was taut, however the rear chain was loose. r) Approximately 1 metre to the rear of the front stanchion on this bay was a second bolster running across the width of the chassis. Although no stanchion was protruding from this bolster, a load binder was attached to the side. This load binder had a flat orange belt that was fully retracted at the time of inspection. s) A log was on the ground on the off side of the trailer running parallel to and adjacent to the first bay of logs. t) The log was approximately 3.714 metres in length and had a diameter of approximately 250 millimetres. u) There was a straight brownish coloured mark which ran across the log approximately 610 millimetres from the end of the log closest to the Prime Mover. There were a number of small indents in the log along the brownish mark. v) A dark mark was also on the side of the log near the end furthest away from the Prime Mover and approximately 3.1 metres from the brownish coloured mark. 39. The WorkCover Authority of New South Wales has produced " The Code of Practice for Loading, unloading and securing of logs to log haulage vehicles " (the Code of Practice) to provide industry with a set of minimum safety requirements applicable to the loading, unloading and securing of logs to log haulage vehicles. 40. The Code of Practice commenced on 16 January 1995. 41. In relation to unloading logs, the Code of Practice provides in part: "The jinker driver must inspect the load of logs for possible movement before securing chains are released. Load security chains are to be released from within a log restraining cage. If no log restraining cage is available, load security chains are to be released only when the load is restrained by an unloading machine on the load binder side, or by any other positive form of restraint." 42. It is possible for a top log of a load to fall off when the freed securing chain is pulled from the jinker. Top logs may shift during transit and as a result they can be unstable. 43. The Defendant failed to ensure that trucks were inspected upon entering the Timber Mill to ensure that their load of logs were secured and loaded correctly. 44. Truck drivers were not supervised by the defendant when releasing the load and security chains. 45. The Defendant failed to ensure that truck drivers visually inspected their load of logs prior to releasing the load and security chains. 46. The Defendant failed to ensure that persons not in its employment, in particular, Glen Roland Dunstall, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work. The defendant failed to:- a) Failed to provide such information, instruction, and supervision as may be necessary to ensure the health and safety of non-employees in relation to the unloading of logs including the following: i) such information, instruction and supervision to ensure that there was adequate inspection upon the truck entering the Timber Mill to ensure that the logs were secure and had been loaded safely; ii) such information, instruction and supervision to ensure that there was adequate inspection prior, during and immediately after the driver released the load security chains to prevent a log falling on employees; iii) such information, instruction and supervision to protect the driver when the driver released the load security chains As a result of the defendant's failures, Mr Dunstall was placed at risk of injury.

3 Evidence was called from David Foster, former Health Safety Environmental Training Co-ordinator and supervisor at the defendant's timber mill situated at Tumbarumba, New South Wales and Michael McIntyre, workshop foreman with Makzak Pty Limited.

4 The case advanced for the prosecutor by Ms McManus of counsel was that the objective features relevant to penalty were: i) The maximum penalty for a corporation prescribed by Parliament for the offence at the time it was committed was $825,000;

iii) The Defendant has an obligation to inform itself of safe working;

iv) The nature of the offence in that it involved obvious risks and it was readily foreseeable;

vi) The nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety.

5 The need for general deterrence was emphasised, having regard to the need for management to meet its positive obligation to inform itself of the circumstances of safe working. The risk to safety here in question was submitted to be serious, because it was obvious or foreseeable and appropriate measures were not taken to guard against it, even though they were available or feasible.

6 Foreseeability was said to flow from the evidence that the truck was loaded with 80 logs, loaded parallel to the length of the trailer, housed in two separate bays. They were of differing lengths ranging from 3.71 metres to 4.9 metres, with the longer logs cradling the shorter logs towards the centre of the load. Each bay of logs was held in position by four vertical stanchion posts. The posts on the front bay were positioned at approximately 3.64 metres, centre to centre at the base and 3.73 metres at the tip. The log that fell was 3.714 metres. Apart from the posts, the logs were secured by one chain and a strap. They had travelled 45 kilometres upon arrival at the mill. Top logs may shift during transit and as a result can be unstable. It is possible for a top log to fall off, when the security chain is pulled off. This risk was readily foreseeable.

7 The availability of simple and straightforward steps, which were available and feasible, were also submitted to be relevant to an assessment of the seriousness of this offence. They included ensuring that information, instruction and supervision were provide to ensure that the load was visually inspected upon entering the mill to ensure the security of the logs prior, during and after the release of the security chains.

8 The risk of injury in this case was submitted to have been greater than the injuries sustained.

9 The case advanced for the defendant by Ms McDonald of counsel was that it was conceded that general deterrence must play a feature in the penalty imposed, but that specific deterrence was not a factor to be taken into account. The evidence showed that the business had been sold to another corporate entity unconnected with Boral Limited, the owner of Hardys at the time of the accident. That company had gone into voluntary administration. It had no assets and there was no intention for it to trade again. Once this prosecution was concluded, it would be wound up. (See Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at [77].) It followed that the prospect of the defendant re-offending was nonexistent and the need for specific deterrence could properly be disregarded.

10 As to foreseeability, it was accepted that the risk of logs moving and falling arising from them being moved to the mill, was foreseeable. In this case however, it was submitted that proper regard had to be paid to the major cause of the particular risk which had arisen. That, it was submitted, had flowed from the packing of the load which had occurred long before the truck had arrived at the mill. Reference was made to the broken security chain and the use of a strap in its place. The evidence was that the driver had removed the strap, while waiting to enter the mill at the weighbridge, which was not in accordance with normal practice. An investigation had been conducted by the defendant, which identified that the risk had arisen from not using two chains on the load.

11 The charge concerned the defendant's failures in relation to a non-employee, Mr Dunstall, the driver of the truck. The evidence showed that he had been given on site training by the defendant and that he had also received instruction from his employer. The failure demonstrated was that Mr Dunstall did not adequately inspect the truck before releasing the other safety chain. The defendant had, as a result, pleaded guilty to the charge laid. It was nevertheless relevant, in an assessment of the risk in question, that Mr Dunstall, while not warned to first check the position of the logs, understood that it was commonsense to do so.

12 It followed that unlike the other defendant, which had been charged with a failure to provide a safe system of work, the charge laid against this defendant, was not the central cause of the risk to safety which had arisen. A failure to instruct, inform and supervise a non-employee in relation to a matter of commonsense, did not provide the defendant with any defence to the charge, which was accepted, by the plea entered. It was, however, relevant to an assessment of culpability.

13 It was submitted that the defendant should receive a 25% discount flowing from its early plea and that the evidence as to other subjective factors, including the defendant's demonstration of contrition and remorse, would lead to a further discount. The defendant was nothing more now than a shelf company, maintained by Boral Ltd in order to ensure the penalty imposed would be met. The steps taken by the defendant in respect to the accident and the evidence as to its commitment to safety, led to the same conclusion. That was not a matter of just issuing new directions, there had been a proper investigation as well as follow up, throughout Boral Timber operations.

14 The defendant's record of one offence, in relation to unrelated matters showed that it had a good record, given the operation of the company since the 1940s and Boral's involvement since the early 1990's, given the hazardous industry in which it operated. Regard would also be had to the fact that the other conviction related to subsequent conduct. (See Judicial Commission of New South Wales 'Sentencing Manual' by Ivan Potas at p298.)

15 As to parity, it was submitted that the co-defendant would be found to have been responsible for the major cause of the accident and would not be found to have the same culpability.

16 The prosecution disagreed with the submissions advanced in relation to the main cause of the accident, or that the use of a strap as a restraint of the load was a significant cause of the accident.

17 There was an issue between the parties as to the maximum penalty applicable to the offence. I am satisfied that it is $825,000. The question turns upon the proper construction of s51A of the Act. This has been considered by a number of single members of the Court. I dealt with the matter in WorkCover Authority of New South Wales v (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245. Boland J took a similar view in WorkCover Authority v Howard and Sons Fireworks Spectaculars (No 2) [2001] NSWIRComm 116 at [25] to [29]. Marks J took a contrary view in WorkCover Authority of New South Wales v (Inspector Campbell) v Nelmac Pty Ltd [2000] NSWIRComm 228 at [31] to [37], which his Honour followed in WorkCover Authority of New South Wales v (Inspector Robinson) v Milltech Pty Ltd [2001] NSWIRComm 192. Ms McDonald did not advance submissions as to why the construction of the section which Marks J favoured should be preferred.

18 His Honour's approach rested upon a consideration of the terms of s51A(3), where reference is made to an offence, rather than a conviction, with which s51A(1) is concerned. His Honour perceived an ambiguity in the section and thereupon had recourse to the second reading speech, in order to assist in its resolution.

19 I have considered his Honour's approach, but still find myself in disagreement with it and so adhere to the conclusions which I reached in Central Sydney Area Health Service, as to the proper construction of s51A.

20 It seems to me that the provision made in s51(3), that the section applies, even if the previous offence concerned was committed before the section commenced, has regard to the very fact that a conviction may not emerge for some time, years in fact, if a coronial inquest is held. (See s49(4) of the Act as to the extended time period for the institution of proceedings in such a case). This tends to explain the scheme of the Act, which involves s51A(1) concentrating upon a conviction, rather than commission of an offence. By the time a conviction is reached, much time may well have elapsed during which the defendant has acquired a record of conviction for other offences, albeit offences which were committed after the first offence, which however comes before the Court for sentence, later in time.

21 I am satisfied that the intention of the Act is to impose a maximum penalty for the first offence in respect of which an offender is convicted and to increase the maximum, for later convictions, not later committed offences.

22 I turn then to the plea here advanced. Given the evidence, the plea entered by the defendant was an understandable one, in the circumstances. Determination of the appropriate sentence turns upon a consideration of the objective seriousness of the offence in question. This offence was concerned with a failure to ensure the safety of a non employee, Mr Dunstall, engaged in bringing logs to the defendant's mill, by truck, to be unloaded there. The evidence showed that he had earlier received on site training from the defendant, in relation to the work to be performed upon his arrival at the mill. He had also been provided with written instructions applying to log truck drivers.

23 The facts agreed by the parties included that Mr Dunstall had not ever been warned by the defendant to check the position of the logs, prior to releasing the security chains which held them. Mr Dunstall was not supervised while this work was done.

24 Given the evidence of the size of the log which struck Mr Dunstall, the distance between the supporting stanchion posts on the trailer and the way in which logs were loaded onto the truck, the possibility that a log might become loose or unstable prior to the unloading operation, was obvious. That it might fall once the security chains were removed, was also an obvious risk, as was recognised in the agreed Statement of Facts.

25 There was an Industry Code of Practice produced by the WorkCover Authority in 1995, which identified this risk and provided that drivers must check the load for movement before the chains are released; that they are to be released within a log restraining cage and if one is not available, that they are only to be released if the load is restrained by an unloading machine, or by another positive form of restraint.

26 These means of addressing the risk here in question were thus plainly known. Their implementation was within the defendant's control, given that the unloading work was being performed by Mr Dunstall, at the defendant's mill. In those circumstances, it is not possible to accept the submission that the defendant's failures were peripheral, as a causal factor in the risk which here arose, or that the risk had materialised because two chains had not been used to restrain the load. It was the failures at the point of unloading the truck, which plainly led to the risk here in question materialising.

27 It follows that a substantial penalty must be imposed upon the defendant. In fixing that penalty regard must also be had to the defendant's record, which I note is one conviction, in respect of an offence which occurred after the date of this one. I also accept that it is relevant to note that at the time of the commission this offence, the defendant had no record. The Chief Industrial Magistrate later imposed a penalty of $31,000 for the offence. The circumstances of that offence were unrelated to this offence and indeed, not connected with the defendant's usual undertaking at the mill. The offence involved an employee who had been exposed to a live cable, while the defendant was removing a shed which had collapsed.

28 The evidence showed that the defendant had operated this mill since the late 1940s, employing approximately 100 persons in April 2000. At that point Boral had been involved in the operation of the mill since the early 1990's. I accept that this industry is an inherently dangerous one and that the defendant's record, especially at the time of commission of this offence, was in that context, a good one. The defendant has since sold the mill.

29 The prosecutor accepted that this was relevant to be taken into account on the question of specific deterrence. I am satisfied that general deterrence is a factor which must be weighed in arriving a penalty in this case, but that in the circumstances, specific deterrence does not have a role to play.

30 The defendant also relied upon its general approach to its obligations under the Act in relation to safety. I am satisfied that this was a defendant which had a commitment to safety before the accident; despite the obvious lapse which gave rise to the risk here in question, that it acted both to investigate the cause of the accident and then to swiftly introduce a new system, pending a more comprehensive investigation of procedures adopted in industry. A safety alert was issued promptly and new guidelines were later implemented. Training at the mill in the new procedure was also implemented, as well as elsewhere in Boral's timber operations. This was undoubtedly a commendable approach. Regrettably, if it had been an approach taken prior to the accident, then the risk in question would not have arisen.

31 The prosecutor accepted that the defendant had co-operated in the investigation and had also conducted its own investigation into the accident, the results of which it had shared with the prosecutor.

32 The new guidelines later produced, nevertheless, highlighted the seriousness of the deficiency in the defendant's approach, prior to the accident. The Code of Practice recognised that many incidents had occurred in industry as the result of logs falling and striking truck drivers and unloaders, with serious consequences, some fatal. The new procedures required the load to be secured before the driver removes the securing chains. The policy also places a responsibility upon site managers to audit compliance with the policy.

33 It follows that the defendant's submission, that in terms of culpability, it should be regarded as being less culpable than the co-defendant, the employer of Mr Dunstall, must be rejected. The submission of the prosecutor that the injury here suffered by Mr Dunstall was not as great as that which might have arisen from the risk to which he was exposed, must also be accepted.

34 Having taken all of these factors into account, I have concluded that the penalty to be imposed should be fixed at $90,000. I have also concluded that the defendant is entitled to a 25% discount, for its early plea, as accepted by the prosecutor and that in addition, it should receive a further discount of 10% for the other subjective factors here demonstrated, which I have earlier dealt with. The penalty which results is $58,500.

35 For all of these reasons, I convict the defendant of the offence charged and order it to pay a penalty of $58,500, with a moiety to the prosecutor.

36 The usual order as to costs would be that the defendant pay the prosecutor's costs, as agreed or assessed by the Court. The parties have liberty to approach, in the event that no agreement is reached. That liberty should be exercised within 28 days of the date of judgment. ------------------------

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