Inspector Barber v Storite Pty Limited

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

DATE: 29 August 2003 Matter Number IRC 1501 of 2002 INSPECTOR MARK ANTHONY BARBER v STORITE PTY LIMITED Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 Judgment in this matter was given on 29 July 2003 (Inspector Barber v Storite Pty Limited [2003] NSWIRComm 228) and the hearing adjourned, so that the defendant might have an opportunity to make submissions on sentence. There was, again, no appearance for the defendant at the further hearing, but a written submission was filed by letter of 14 August, signed by LA McIntyre, the daughter of the two directors of the defendant, Mr James Crozier Snr and Mrs Patricia Crozier and its office manager.

2 The prosecutor objected to some aspects of the submission, which were unsupported by evidence and/or inconsistent with the evidence in the proceedings. In the circumstances, some of those objections were upheld. Several doctors reports, were however, received.

3 The circumstances here in question and the evidence which led to the finding that the defendant was guilty of the offences charged, are set out in the earlier judgment. I do not repeat what was there said.

4 It is now necessary to determine an appropriate penalty for the offence in question, having regard to its nature and quality.

5 The case advanced for the prosecutor was that the objective features relevant to penalty were the maximum penalty of $550,000; the need for general deterrence; the defendant's obligation to inform itself of safe working; the nature of the offence, involving obvious risks and ready foreseeability; the simple steps taken to remedy the failures and the nature of the offence, manifested by the injuries, showing the degree of seriousness of the relevant detriment to safety.

6 The submissions for the defendant went to the history of the defendant's operations since its establishment in 1995, as part of a 'succession plan' to aid the retirement of Mr and Mrs Crozier, who had been hauling logs in the Tumbarumba area since 1968. Other family members had also worked in the business, which had employed 20 workers at any one time. The defendant was no longer trading and costs involved in travelling to Sydney had precluded its appearance at the hearing of this matter.

7 Nevertheless, it was submitted to be relevant to penalty that the defendant had assisted the WorkCover Authority by the provision of affidavits tendered in the proceedings. Ms McIntyre referred to the employees trained and employed by what had been a family business operating in a small country town for 20 years. Contributions had been made by the defendant to Safety Codes developed in New South Wales and Victoria. It was submitted that safety had always played a part in the defendant's operations and that its record in an inherently dangerous industry had resulted from its approach to safety, not good luck. It was estimated that prior to April 2000, some 60,000 loads, or 3.5 million logs had been transported without incident, because of the safety conscious approach adopted. There had also been adherence to a WorkCover Code of Practice for the industry, since its issue in 1995.

8 Reference was made to the training provided to employees and the nine separate occasions when the log in question on 18 April, should have been observed. Submissions were advanced as to the probable cause of the log falling and the steps taken after the accident, to document the defendant's procedures. Safety audits had been conducted and the suggestions arising out of them implemented. Consideration was also being given to observations made in the earlier judgment, about the risk associated with logs falling from a height, which a driver could not observe, as well as the need for supervision of drivers.

9 An application was also made that while the offence had been found proven, no conviction be entered. In this respect, reference was made to the distress of the directors, aged 69 and 68 years, as to this development at the end of their working lives and the resulting tarnishment of their reputation.

10 I also note that the medical evidence went to the condition of the injured driver. Medical opinions as to the extent of the worker's injuries diverged. It is unnecessary to resolve this question. Undoubtedly, the risk in question was higher than the injuries sustained, on either view. The Act is concerned with risks.

11 I am satisfied that in accordance with the provision of the Fines Act 1996, it is necessary to take account of the position of the defendant in determining sentence. (See also the Full Court's discussion of circumstances where the burden of a fine will fall on one family group ownership in Haynes v CI & D Manufacturing Pty Limited (No 2) 60 IR 455 at p457). In the absence of any evidence demonstrating the defendant's limited means or impecuniosity, the approach taken, for example in WorkCover Authority (Inspector Farrell) v Schrader (2002) 112 IR 284 at [83] to [87], is, however, not available. The Court can only proceed on the basis of evidence, not mere assertion.

12 I am also satisfied, that the circumstances of this case are not such that the discretion under s10 of the Crimes Sentencing Procedure Act 1999 may properly be exercised in favour of the defendant. See the Full Court's discussion in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 at pp70-71, where the rare circumstances in which that discretion might be exercised is discussed. It is difficult to see that such a course is available in the absence of a plea of guilty and where there is not present for example, extenuating circumstances over which the defendant had no control.

13 The evidence showed that the risk here in question, was both a serious and obvious one. These objective features are the principal determinant of penalty. As I noted in the earlier judgment, commonsense required that a driver check the stability of the load, before the straps were released. The system in place did not ensure that this occurred, with the result that the vital commonsense step was not taken and the risk materialised. In addition, the system was deficient in relying upon a visual check, which might not be sufficient, given the kinds of load carried and in circumstances where no other steps were taken to ensure safety, if this is vital check were overlooked, or proved to be inadequate, to detect log instability, out of a driver's view.

14 Some account must obviously be taken of the fact that the risk materialised in circumstances where the truck was being unloaded at a mill site, where the driver was under the control of the mill owner, which was conducting the unloading operation. Nevertheless, the Act also imposed obligations upon the defendant at that time, which cannot be overlooked at the point of sentencing.

15 I do take the view, however, that on the evidence, this is not a case where it can be concluded that the many years of operation of this business without prior incident, resulted from good luck, rather than good management. Consideration must be given to the nature of this defendant's operations; the industry in which it was operating; the time over which the business had operated; and the work done in that time, all without prior incident. The evidence as to the conflicting views as to whether the steps taken after the accident by the mill owner, to address the risk here in question, did not give rise to other risks, also cannot be overlooked. How safety might be ensured, in the circumstances of this work, was a matter about which minds plainly differed. Account must also be taken of the defendant's general approach to safety matters, as well as the approach adopted after the accident, to the risk which had been revealed.

16 As I have earlier noted, the nature of the defendant's business and its size, must also be taken into account. There was no evidence put before the Court as to its financial circumstances, although I have taken account of the fact that it is no longer operating. This circumstance has reduced the role which specific deterrence has had to play in determining penalty, but I have not excluded it entirely given the limited evidence to which I earlier referred. I am satisfied, however, that the circumstances were such that proper regard must be had to the element of general deterrence, as a feature of penalty.

17 While the approach adopted by the defendant to the prosecution, in respect of which it neither entered a plea, nor appeared, cannot permit any discount of penalty to flow in the defendant's favour, I take the view that it is appropriate to take note of the assistance provided to the prosecutor, by provision of the affidavits then tendered at the hearing. I note that the prosecutor voiced no opposition to this aspect of the defendant's submission.

18 The maximum penalty for this offence is $550,000. Having regard to all of the matters I have mentioned, I have concluded that a penalty of $30,000 must be imposed.

19 For all of the reasons given, I order the defendant to pay a penalty of $30,000 with a moiety to the prosecutor.

20 The usual order as to costs is that the defendant bear the prosecutor's costs, as agreed or assessed. If the parties are unable to agree, they have liberty to have the matter restored to the list. That liberty should be exercised within 28 days. ------------------------

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