Inspector Barnard v Rail Infrastructure Corporation

PROSECUTOR: Mr R Reitano of counsel SOLICITOR: Ms R Parmagiani WorkCover Authority

LEGAL REPRESENTATIVES: DEFENDANT: Mr J. N Gleeson QC SOLICITOR: Ms W Thompson Freehills

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

20 May 2002 MATTER NO IRC 2671 OF 2000 Inspector Kenneth John Barnard v Rail Infrastructure Corporation [No 2]. MATTER NO IRC 2672 OF 2000 Inspector Kenneth John Barnard v Rail Infrastructure Corporation [No 2]. Prosecutions under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] NSWIRComm 107

1 In a judgment delivered on 19 October 2001, the defendant was found guilty of two charges brought under s 15(1) of the Occupational Health and Safety Act 1983 (see [2001] NSWIRComm 255).

2 The charges alleged that the defendant had failed to provide supervision necessary to ensure the health and safety at work of its employees carrying out railway track maintenance work and further, a failure to provide or maintain systems of work for persons carrying out railway track maintenance work that was safe and without risk to health. The amended summons in the first case was in the following terms: On 14 June 1998 at Kilometre 165.420 from Sydney at Waratah in the State of New South Wales, the defendant, being an employer DID FAIL to ensure the health, safety and welfare at work of all its employees in particular Clarence Mason in failing to provide such supervision as may be necessary to ensure the Health and Safety at work of its employees carrying out railway track maintenance. The particulars of the charge are: a. the defendant at all material times employed Clarence Mason. b. the defendant was undertaking railway track maintenance work at kilometre 165.420 from Sydney. c. the defendant failed to provide such supervision to ensure that employees did not come within 2.5 metres, horizontally, of the nearest rail of any running railway line; d. the defendant failed to provide such supervision to ensure that a system of protection of the worksite was in use with barriers or boundary tape; e. the defendant failed to provide such supervision to ensure that employees crossing the rail of a running railway line, in darkness, were not placed at risk or injury; f. as a result of the said failures Clarence Mason suffered numerous injuries.

3 The second amended summons alleged a breach in the following terms: On 14 June 1998 at Kilometre 165.420 from Sydney at Waratah in the State of New South Wales, the defendant, being an employer DID FAIL to ensure the health, safety and welfare at work of all its employees in particular Clarence Mason in failing to provide or maintain systems of work for persons carrying out railway track maintenance work that was safe and without risks to health. The particulars of the charge are:

a. the defendant at all material times employed Clarence Mason; b. the defendant was undertaking railway track maintenance work at kilometre 165.420 from Sydney; c. the defendant failed to provide or maintain systems of work to ensure that employees could not come within 2.5 metres horizontally of the nearest rail of any running railway line; d. the defendant failed to provide or maintain a system of work to ensure that a system of protection of the worksite was in use with barriers or boundary tape; e. the defendant failed to provide or maintain systems of work to ensure that employees crossing the rail of a running railway line in darkness were not placed at risk of injury. f. as a result of the said failures Clarence Mason suffered numerous injuries.

4 The essence of the case was that an employee of the defendant, Mr Mason, was employed in the capacity of Traffic Officer and had been allocated specific tasks in relation to work being performed by a railway maintenance gang. Mr Mason's primary duties were to act as lookout for the maintenance gang when working near live railway lines, and secondly to perform the switching function whereby the maintenance team and their equipment crossed from one set of railway lines to another in order to perform maintenance functions. It was planned that this work be performed at night with the maintenance work lit by the use of a mobile lighting unit. Mr Mason was hit by a coal train while crossing the lines and was seriously injured.

5 In summary the following findings were made: (a) the working rules governing this maintenance task, known as Safe Working Units, were often contradictory, were to be found in a number of places within the rules themselves and provided little more than a paper system; (b) the Safe Working Units provided a number of means by which the work could be protected when being performed near a live line but there was no indication as to how people were trained to chose the most appropriate means for the particular work in hand; (c) one Safe Working Unit rule, in particular, provided that persons trained to a certain level could look out for their own safety: this was the rule applied to Mr Mason in the work he performed with the maintenance gang; (d) Mr Mason could chose to look after his own safety, or if concerned for his safety, arrange safety measures with his supervisor - there was no evidence of training to assist such a person to decide whether or not they were at risk and what to seek from their supervisor; (e) on this particular night the evidence suggested three or four different persons might be the supervisor of Mr Mason's work - this utter confusion made it impossible for Mr Mason to know whom to approach to discuss or arrange for protection when working near a live line; (f) the work gang involved had an allocated lookout but the rules did not require anybody to consider the provision of a lookout for the Traffic Officer when crossing the live lines in the course of arranging the cross-over of the maintenance gang and their equipment to new lines; (g) the Safe Working Units also provided for the use of detonators and the train whistle as warning of an approaching train, but it was well known that the noise of equipment used by maintenance gangs meant that it would be highly unlikely that the sound of a detonator or of a train whistle would be heard by either the maintenance gang or the Traffic Officer;

(h) it was possible for the working gang and the Traffic Officer to be warned of an approaching train by radio message from a nearby signal box - although this happened on some occasions during the night of this work, it did not happen on the occasion when Mr Mason crossed the line and was hit by the coal train;

(i) it was possible to notify trains using the line that maintenance gangs would be working next to or near a live line but the coal train driver on this night had been given no such prior warning;

(j) the evidence demonstrated that utter confusion reigned within the defendant's organisation as to lines of supervision and there appeared to be overlapping lines of authority and supervision with no clear understanding within the workforce of who would exercise a supervisory function in relation to matters of safety and at what times;

(k) that the lighting used that night was focussed on the maintenance work and was not directed to providing light for Mr Mason to cross the live lines and to give him a view of oncoming trains while crossing the lines.

6 In the hearing on sentence, the prosecutor tendered the defendant's prior convictions including those of the entities formerly known as Rail Access Corporation and Rail Services Australia, the present defendant being the statutory successor to those two bodies. The defendant corporation had five previous convictions dating from December 1999 to December 2001. Two convictions under s 15(1) of the Act before the Chief Industrial Magistrate had brought fines of $6,000 and $15,000 respectively in December 1999 and February 2001. In May 2001, there was a conviction under s 16(1) of the Act before the Chief Industrial Magistrate which brought a penalty of $22,500. There were two convictions before the Industrial Relations Commission: the first imposed a fine of $70,000 in April 2001 for a breach of s 16(1) of the Act, while the second imposed a fine of $100,000 in December 2001 for a breach of s 17(1)(a) of the Act. It was common ground that s 51A of the Act applied and that the maximum fine which could be imposed was $825,000.

7 For the prosecutor, it was submitted that the primary factor to be considered in determining an appropriate sentence was the objective seriousness of the offence which had been proven (Lawrenson Diecasting Pty Ltd v WorkCover Authority (1999) 90 IR 464 at 474; Fletcher Constructions Aust Ltd v Workcover Authority (1999) 91 IR 66 at 77-81). The principal and main factor in assessing the objective seriousness of the offence was the nature and quality of the offence itself. The Commission had observed in Lawrenson that there were a range of factors which were relevant to the establishment of an objectively serious offence. These factors will invariably include whether or not the risk was an obvious or foreseeable one against which appropriate remedial measures were not taken. Further, the availability and feasibility of any such measures will be a relevant consideration.

8 The objective seriousness of the offence could also be measured by having regard to the practical consequences which flowed from the commission of the offence: whilst the gravity of an injury suffered should not, and does not, dictate the magnitude of the penalty it does demonstrate the seriousness of the detriment to safety occasioned by the offence (Tyler v Sydney Electricity (1993) 47 IR 1 at 5). It was submitted that in the present case the potential consequences of the risk were obvious - Mr Mason's injuries were serious and he was lucky to be alive.

9 There were two other factors which underlined the objective seriousness of the offence. Firstly, the maximum penalty prescribed by the legislature for the offences in question for a corporation was $550,000 where the offence was a first offence, and $825,000 for a repeat offender. It was said that this standard of penalty obviously reflects the community and legislative expectation that offences under the Act will be regarded seriously. Because of the operation of s 51A of the Act the maximum fine in this case was $825,000 (R v Howland (1998) 104 A Crim A 273). The second matter said to be relevant to the objective seriousness of this offence dictating a substantial penalty being imposed was the need for the penalty to act both generally and specifically as a deterrent. The penalty imposed must generally compel attention to all occupational health and safety matters so as to ensure that employees will not be exposed to risk to health and safety whilst at work (Fisher v Samaras Industries Pty Ltd (1998) 82 IR 384; Capral Aluminium Ltd v WorkCover Authority (2000) 49 NSWLR 610).

10 In the present case, the prosecutor submitted that the defendant was a public authority charged with responsibility relevant to the operation of the States railway network. It was a large employer. Its workplace had the potential to be unsafe having regard to its inherent nature. A fine should work to remind the defendant of not only its continuing obligations under the Act, but also the proactive approach it must take to occupational health and safety.

11 In relation to the findings made in the judgment of 19 October 2001, it was said that at the forefront of those findings lay the simple fact that the risk to which Mr Mason was exposed involved his employer's requirement that he cross live railway lines at night. The precise nature of the risk was highlighted by the driver of the coal train in his evidence where he observed "… that virtually things have to stay clear of trains rather than us stay clear of other people because of the - the size of the vehicle we are driving and the lack of response but we - we were driving within the prescribed speed and the limits of our machine".

12 It was submitted that the following findings in the judgment were of importance in the sentencing exercise: (a) that, at best, there was a skeletal system of safety at work which failed to ensure safety of workers who were working near a live railway line;

(b) that it was difficult to accept that a system of work that left it to employees, even trained employees, to look after themselves could be described as a system of work at all;

(c) that it was difficult in the circumstances, (particularly having regard to the fact that the task that Mr Mason was undertaking was one that would take a very short amount of time) to understand why the ganger should not have been designated the task of keeping a lookout for the Traffic Officer: this was especially so when the work was to be performed at night;

(d) the system involving notification from the signalbox, using radios held by the respective workers, that a coal train was approaching, appeared to have broken down;

(e) a system which essentially says "look after yourself" is not a system of work at all and is certainly not the provision of a safe system of work;

(f) the system of supervision demonstrated that utter confusion reigned within the defendant's organisation concerning lines of supervision and was "chaotic";

(g) Mr Mason was not supervised on the night in question;

(h) there were very simple measures by way of providing supervision and a safe system of work which would have prevented the injury to Mr Mason which occurred on the night in question;

(i) the means of supervision by resort to a lookout was ready at hand and would have been simple to implement, was obvious and the danger was clearly foreseeable.

13 The prosecutor pointed to two observations made in the judgment which summarised the nature of the risk and the means available to the defendant to overcome it: at par 131 it was observed: (a) The danger of crossing live lines was known to the defendant. The system of looking after yourself, or deciding yourself whether or not protection was needed, was not a system that addressed the risk or the requirements of s 15 to "ensure" the safety of Mr Mason and Traffic Officers working in similar circumstances.

14 In paragraph 133 it was said: (b) Far from demonstrating by evidence that it had no control and the impracticability of taking measures, the defendant, by adopting the system of a lookout (with barriers where appropriate) showed how control could be obtained and how reasonable, simple and practicable was that control.

15 These findings and observations demonstrate that the risk was obvious and known and that relatively simple measures could have been taken to guarantee the safety of workers against the risk to which they were exposed.

16 The defendant is a repeat offender and has a record of some significance. In a relatively short time it has built up a record of offences against the Act which must be of concern. The record of the present named defendant included that of Rail Services Australia (see WorkCover Authority v Rail Infrastructure Corporation [2001] NSWIRComm 323). Here the offence was clearly serious and called for a substantial fine.

17 The prosecutor accepted that the defendant operated in a heavy industry with many rail movements and much maintenance work. While there was a relatively small number of instances of injury and risk to health and safety, what was of concern was that the small number was increasing. From an affidavit filed on behalf of the defendant, the prosecutor accepted that, since October 1998, steps had been taken to change the working rules in an effort to make the operation safer. Nevertheless, the record of the defendant was of concern. It was also pointed out by the prosecutor that it was in June 1998 that Mr Mason was injured and the defendant's affidavit material did not show anything happening for approximately four months after that accident and during that period there appeared to be little or no effective response to the serious and obvious detriment to safety demonstrated by the accident.

18 In this case, the defendant had not pleaded guilty and therefore could not obtain the benefits of the utilitarian value of such a plea in line with the guideline judgment in R v Thomson (2000) 49 NSWLR 383.

19 The defendant produced a schedule containing a brief description of the matters where it had been penalised for a breach of the Act. In relation to the two matters before the Commission, the first involved an apprentice falling from scaffolding while carrying out repair work to a roller door at Broadmeadow and suffering serious injuries. In that case a plea of guilty was entered and in 2001 a fine of $70,000 was imposed. The second matter occurred in late October 1998, when there was a fatality at the Trangie Rail Yards when an employee of another entity was crushed between two trains while carrying out shunting duties. In that case a plea of guilty was entered and in December 2001 a fine of $100,000 was imposed.

20 In these proceedings, an affidavit of Mr J M McDonald was filed and read for the defendant. Mr McDonald was employed by the Rail Infrastructure Corporation as General Manager, Safe Working Systems Operating Standards. He had provided similar affidavit evidence in the case of Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80, a decision that was handed down a day after submissions had been received in relation to penalty in the present case. Both parties were given the opportunity to make further submissions in the light of the findings in the Vierow case. The prosecution commenced by Inspector Vierow concerned an accident which occurred in the middle of October 1998 at Bell in the Blue Mountains. There, two maintenance gangs had been allocated tasks repairing the line and, despite there being a considerable distance with a clear view of the working parties and clear weather and good vision, a train on the down line had hit and killed one member of the maintenance gang and had seriously injured another. A plea of guilty had been entered, a discount of 20 per cent had been allowed for the early plea and a further 5 per cent discount allowed for subjective factors. A fine of $150,000 had been imposed upon the defendant, Rail Infrastructure Corporation.

21 The judgment in Vierow dealt in detail with the evidence of Mr McDonald and the submissions put on behalf of the defendant Rail Infrastructure Corporation. Those matters were repeated in the present proceedings and may be summarised as follows: (a) there had been a significant change in the corporate structure of the New South Wales rail network. Prior to July 1996, the New South Wales rail network was owned, managed and maintained by the then State Rail Authority, described as a "vertically integrated rail organisation within one statutory authority but divided into four divisions". In July 1996, the rail industry was restructured into four separate organisations with their own Boards and Chief Executive Officer. (b) in October 1998, the Rail Access Corporation (RAC) was the owner of the New South Wales infrastructure and managed the maintenance and construction of the rail infrastructure it owned. The RAC let the maintenance work to contractors, one of which was the Railway Services Authority (RSA);

(c) the rail network was governed by a number of rules including the rules known as Safe Working Units (SWUs) which were applied to all users and operators of the rail network;

(d) the RSA operated its own incident investigation unit which investigated major incidents, established the cause and recommended any changes necessary to ensure similar incidents did not occur again. RAC and RSA would co-operate to review any deficiencies shown in the SWUs and, if any amendment was required, staff would be trained accordingly.

(e) on the day after the fatal accident at Bell, the Chief Executive Officer of the RSA issued a memorandum and safety bulletin which outlined minimum additional protection to be used whereby traffic could operate on a line adjacent to any work site. This directive involved the provision of demarcation tape or fencing for work occupying over 30 minutes, the possible use of red witches hat markers and the use of a hand signaller acting as a lookout and a warning signal by the placing of a detonator before the worksite;

(f) circulars issued in October 1998 finally led to RAC issuing a circular in August 1999 providing further safety measures. The time involved in bringing about this circular was apparently due to the need for various entities to discuss the matter and reach a concensus - in the meantime, individual entities were able to make new safety requirements in relation to their own employees only;

(g) during 1998, RSA had a comprehensive system of training in operation. In 1999, a half day induction training was provided to all new RSA personnel and before employees were allowed to work on the track it was a prerequisite that RSA personnel attend a revised safety induction course which taught a risk management approach to safety;

(h) in early 1998, the RSA engaged a leading engineering and construction firm to review the Authority's business management system. The restructuring involved the design, development, implementation and training in policies, procedures and instructions specific to the Authority's role as an infrastructure, construction and maintenance business. This restructure was completed by December 1999;

(i) prior to October 1999, RSA had operated a data base recording all incidents statewide which were reported by each of the railway entities. This database was regularly reviewed to establish patterns in safety issues and relevant Safe Working Units were re-assessed in the light of any incidents;

(j) in December 1999, the RSA had in place an Integrated Management System which documented the Authority's preferred work practices and introduced a level of standardisation and consistency to the way in which RSA personnel were expected to undertake specific elements of their work;

(k) In March 1999, RSA engaged DuPont Safety and Environment Inc, an internationally recognised risk management consulting company. DuPont reviewed the then current safe working systems and safety behaviours in the organisation and recommended changes. DuPont recommended an 11 step safety improvement plan and introduced a system relying on safety observation training, requiring a manager or supervisor trained in IMS to observe what was happening in the field in terms of safety. The DuPont system and the safety management committees continued to operate in the defendant RIC;

(l) in December 1999, McInerney J was appointed to enquire into all aspects of rail safety in what became known as the Special Commission of Inquiry into the Glenbrook Rail Accident;

(m) in November 2000, McInerney J handed down his Second Interim Report. As a result of this Report, as at 1 January 2001, the RAC and RSA were dissolved as separate entities by statute and amalgamated to form a new statutory state owned corporation which was the defendant in the current proceedings, the Rail Infrastructure Corporation.

(n) in April 2001, McInerney J handed down the final report of the Special Commission of Inquiry. Amongst his findings, McInerney J found the disaggregation of the State Rail Authority in July 1996 had failed to work in practice. (o) Mr McDonald expressed the opinion that RIC had responded in an effective and timely manner to the recommendations of McInerney J. As recommended by the Special Inquiry, the Safe Working Units had been re-written and in November 2001, RIC had issued a booklet entitled "Rail Safe Rules Overview". This booklet was an introduction to the new network rules and network procedures for New South Wales Rail and were to apply to all employees, contractors and sub-contractors operating within the Rail Infrastructure Corporation network.

(p) the network rules replaced the Safe Working Units 900 series which had previously been in operation. Mr McDonald expressed the view that there was a fundamental change of focus within the RIC - the approach had changed from having a focus on the application of the rules to one of risk management;

(q) the Government had established the office of Co-Ordinator General of Rail as a Department of the Public Service responsible to the Minister for Transport and had appointed Mr Ron Christie as the Co-Ordinator General of Rail on 7 June 2000; and

(r) regular audits were conducted both internally and externally by RIC. There had been a significant decrease in the number of work place injuries since the introduction of the network rules and no deaths had been recorded with the level of injuries decreasing markedly.

22 In oral submissions for the defendant, it was said that, for the two years after disaggregation in 1996, when the one organisation became four, they still nevertheless worked on the old systems and kept the old Safe Working Units, but they did not keep up with their obligations and there was clearly no thought given as to how this disaggregated system would work. It was submitted that there was no changed programme, there was no planning and during 1998 there developed "an unfortunate history of accidents and the disastrous course of events". There were a number of accidents at this time, some already dealt with by the Court and some still to be dealt with by the Court but, nevertheless it seems, confined to this particular period of time. It was incorrect to say that that history has continued - much had been done recently to address these problems of safety in the workplace.

23 In relation to the present case, it could not be found that the work was being carried out in an ad hoc fashion because, on the evidence, there was a significant level of training which had gone into the preparation of the work. A work plan had been tendered and other documents showing the detail that had been gone into prior to the work commencing. This included the steps taken to take possession of the up and down main lines and how the work was to be carried out in conformity with what were then the relevant Safe Working Units. In considering the nature and quality of this offence, account had to be taken of the fact that it could not be said that this was a case where there was no system for safety in place: rather, it was a situation where systems for safety were in place but they were not adequate in the circumstances to secure the safety of Mr Mason. It was significant in this context that the Court had found that the maintenance team working away from the live line on the tamping machine was not exposed to a risk to their health and safety at work. Although, as a system, it had its deficiencies, at least the defendant had turned its mind to an appropriate system and there were some valuable elements to it as compared to a defendant who had totally failed to give any consideration to a system of safe working.

24 It was accepted by the defendant that the memorandum of 16 October 1998, containing further safety measures to be adopted when working near a live railway line, was an immediate response to the accident at Bell and if that had not occurred, that memorandum would not have been formulated and promulgated. From October 1998, it was submitted, "things started to happen".

25 Senior counsel for the defendant put the following proposition: In addition, it became obvious during the hearing that RSA had no means to ensure that signal boxes would advise train drivers of the presence of workers. Your Honour would remember Mr McCulloch had to send a fax to the signal box because, although it was up to the State Rail to tell the signal boxes who he hoped would tell the drivers, he was wasn't convinced they would do it. They could not ensure that the signal boxes would advise the relevant traffic officers. The system of the Safe Working Units was the system which the four rail entities, including RSA, were operating under and, indeed, it is our submission that the Court ought to have regard, when considering the nature and quality of the offence, to the parameters of the system under which the defendant was required to operate and how this would impact on those measures available to RSA to put in place at the time of the incident. Senior counsel explained that the Safe Working Units could not be easily altered and they required agreement between the various entities and that it was "difficult to get agreement". While individual entities could give directions by way of memorandum to their own employees, that led to the situation where they would be working under one set of rules and others using the infrastructure would be under the Safe Working Units and therefore a different system. The defendant was really restricted by the parameters of that system.

26 It was accepted that, for nearly four months, immediately after this accident, nothing appears to have been done by the defendant and the defendant would have "live with that". From October 1998, many steps were taken to improve the safety of the workplace in and around live railway lines as spelt out in Mr McDonald's affidavit evidence. The new network rules were described as a very comprehensive and impressive document. Unlike the Safe Working Units which were replaced, it was a very professional and easily readable and understandable document.

27 As had been put in submissions for the same defendant in the Vierow (Bell) case, it was said that a relevant factor was the dissolution of the RSA and other entities and the formation of the present defendant. The dissolution of the previous Corporation and the removal of its Chief Executive Officer were the "ultimate sanction" and that ultimate sanction had already been visited upon RSA. In the context of the present proceedings, that factor, combined with the other matters raised by the defendant, meant that it was not necessary for the Court to impose a heavy fine in order to act as a deterrent. Further, the objects of the Act would not be promoted in circumstances where a real and significant effort had been made to introduce new safety rules and improved workplace safety if such steps were not adequately recognised in any penalty imposed by the Court. In short, the defendant was entitled to get credit for the steps it had taken in this regard.

DELIBERATION 28 As noted in the submissions, a variety of considerations which informed the determination of penalty in Inspector Viewrow v Rail Infrastructure Corporation [2002] NSWIRComm 80 (the Bell case), are also relevant to the present proceedings. Both accidents involved the same defendant, occurred within months of each other, arose out of the same work practices including working rules which permitted persons in danger to "look out for themselves" and resulted in serious injury to Mr Mason in the present case, while at Bell there were fatal injuries sustained by one employee and serious injuries sustained by another. It is therefore convenient and appropriate that, with necessary modifications (which are few) in recognition of the different factual circumstances, I repeat what I said in Inspector Vierow in paragraph 66 to 70 inclusive:

66. The objective seriousness of the offence in this matter is not in doubt and, in many respects, has been readily acknowledged by the defendant. In this case, numerous elements combined to present a very dangerous work situation: the work was to be performed on live railway lines; in relation to the down line the work practice was adopted whereby the employees would look after their own safety; the work was to be performed not only on a live line but also close to an adjacent live line; …the work system did not require train drivers to be advised that work was being performed on the line; and the work system did not require the employees to be made aware of train timetables and the time that trains may be present in the work area during the period that the maintenance task was being performed; there was no requirement for a person to be allocated the task of a lookout or to act as a handsignaller under the Safe Working Units; the working area was not required to be clearly marked so that passing trains would have advance warning of the fact that a maintenance gang was working on the line; and there was no system of direct contact with the nearest signal box so as to be informed that a train was approaching. … 67. In other cases involving the railway system, I have commented on the inadequacy of the system of work which permitted employees to look after their own safety. Those observations are simply confirmed by the evidence in the present case, but it is also apparent from the material presented by the defendant that, following the Glenbrook Special Inquiry, it is now accepted by the defendant that the approach encompassed in the Safe Working Units system failed to provide adequate safety for persons working on or around live railway lines. This acknowledgement was a central theme in the defendant's submissions on penalty. This is, therefore, not a case where the existence of settled safety procedures and instructions is a factor which may mitigate against the seriousness of the offence as discussed in such cases as Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348, especially at par 135. I accept the submissions on this matter made by the prosecutor. The fact that there has been a fatal accident and that another worker was seriously injured is evidence of the seriousness of the breach. 68. I also conclude, regrettably, that this accident and the detriment to safety which it exposed was entirely foreseeable and could have been avoided by a simple application of a combination of the existing Safe Working Units. The use of a dedicated handsignaller and lookout was likely to be effective … It was open to the defendant to adopt the system of stopping the traffic by signals until the work was performed … It is significant that … the defendant issued a new circular requiring the presence of a handsignaller acting as a lookout whenever work was being performed adjacent to a live rail. 69. In relation to the issue of deterrence this is a case where the imposition of a significant penalty will operate as a general deterrent. The issue of specific deterrence is complicated, somewhat, by the changing corporate structure after the date of this accident. The prosecutor draws attention to the fact that shortly before and shortly after this accident there were serious breaches of the Act including a fatal injury arising from work being performed on or around live railway tracks. Those incidents are of particular significance in considering the issue of specific deterrence. Against that admitted background, the defendant, however, points to the fact that there has been a recognition that the previous disaggregation policy instituted in 1996 was a failure, especially in terms of providing a safe system of work on or around live railway lines. It is strongly submitted for the defendant that the new corporate structure and the impetus given to a new approach to safety by the Glenbrook Inquiry has found reflection in a dramatic reduction in time lost through injuries and an overall reduction in work place accidents. I am not convinced that a reduction in time lost due to injury, alone, necessarily demonstrates the existence of a safer work place, but that submission was certainly made to the Glenbrook Inquiry although from the material that I have been shown by way of extracts from the Reports of the Inquiry, they do not endorse by way of a specific holding that such a result has been achieved. I have noted earlier, however, that Mr McDonald's sworn evidence for the defendant was that there had been no deaths recorded and that the level of injuries had decreased markedly since the amendments to the SWUs and the introduction of the NWTs. These matters were not cross-examined upon nor challenged in any other way by the prosecutor. I have come to the view, in those circumstances, that there is a more limited role for the concept of specific deterrence in relation to the present matter. The reduction in injuries is also of importance where it was acknowledged by the prosecutor that the work involving maintenance of railway lines throughout New South Wales is a very large enterprise which involves inherent risks to safety. 70. I am not able to accept the defendant's submission that it has already been punished to a significant extent by having a previous corporate structure dissolved and a previous Chief Executive Officer removed. It is undoubtedly correct that those developments took place in the wake of a serious accident at Glenbrook and in the context of a loss of confidence in the safety of the railway system operating in New South Wales. I do not, however, regard those changes, which are not extraordinary in the provision of Government services, as equating with a penalty imposed for the same detriment to safety such as to be taken into account in reducing the appropriate penalty to be set in relation to this particular incident and the risks to safety it demonstrated. For the same reason, I reject the submission that equates the imposition of a penalty in this matter with the notion of double jeopardy accepting, as I do, that such a submission was put by way of analogy. Nor do I accept the submission that the legislative changes have effectively left the defendant with a "clean slate" - it is clear from the transitional provisions accompanying these legislative changes that the liabilities of the former statutory bodies have become the liability of the new statutory entities. In such circumstances there is no room for treating, even on some notional basis, the present defendant as having effectively no previous convictions or no previous record of inadequate systems of safety.

29 It will be noted that, in the summary of Mr McDonald's evidence which appears earlier in this judgment, reference was made to the existence of a monitoring system of railway incidents which call for a reconsideration of existing Safe Working Units and other working rules. In relation to the Bell accident, the rules for the defendant were altered the following day in direct response to that accident: the steps taken were simple and already available under the existing Safe Working Units and involved clearly marking the work area and utilising a lookout and hand signaller so as to be able to warn workers on the line and give advance notice of their presence to oncoming rail traffic. It is difficult to understand, if the system of monitoring was as effective as Mr McDonald stated, that nothing seems to have been done immediately after the incident at Waratah involving Mr Mason. At the very least, the supervisor of the maintenance gang could have been made available as a lookout and hand signaller for Mr Mason for the short period of time during which he was required to cross live lines in order to perform his task which permitted the maintenance gang to transfer from one set of lines to another. It is in those circumstances that I have come to the view that there is a particular role for deterrence in the present case. While the defendant has implemented new safety rules, a lot more must be done to ensure their effectiveness, otherwise they will become a mere paper system which was the fate of the SWUs.

30 The defendant, in a relatively short period of time, has accumulated a worrying number of convictions under the Act. The use to be made of a prior criminal record is well settled. In Veen v The Queen [No 2] (1987-1988) 164 CLR 465, four members of the court, Mason CJ, Brennan, Dawson and Toohey JJ stated: There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the incident offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Otterwell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the incident offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability in the incident case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and never has been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties (at 477-478).

31 Consistent with the principles expressed in Veen, the fact that an offender has a long record of previous convictions and prior offences of the same character does not justify the imposition of a sentence of greater length than the offence warrants: it merely disentitles the defendant to the measure of the leniency which would normally be given to a person of previous good character or a person without a prior criminal record (R v Hall (1974) 1 Cr R App R (S) 27; R v Galloway (1979) 1 Cr App R (S) 311; R v Loosenoore (1980) 2 Cr App R (S) 72; R v The Queen (1981) 3 Cr App R (S) 245).

32 As I have indicated earlier, the issue of deterrence, and more particularly in this case general deterrence, looms large as a consideration in this case. The position of the courts has been encapsulated in the oft quoted passage of Street, CJ in R v Rushby [1977] 1 NSWLR 594 at 597: The law upon the matter of sentencing is well stated in the judgment of the Court of Appeal in New Zealand in R v Radich, a passage which has been cited in other judgments on numerous subsequent occasions: One of the main purposes of punishment … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulse that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape that punishment, or only with a light punishment. If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.

33 How are these principles to be applied in the present case? It is said for the defendant that all of its difficulties in failing to ensure the safety of persons in work places that it operates resulted from an ill considered policy of disaggregation in 1996. There is clearly a period during 1998 when the Safe Working Units did not amount to a safe system of work, especially in relation to that part of the system which permitted employees to "look out for themselves". I have described this as being a skeletal system more akin to a paper system of workplace safety because of its failure to ensure the safety of persons in the defendant's workplace. In this case and in similar cases for this defendant, the Court has been told that the previous system and attitudes have been reversed, that there are new statutory entities operating under a wholly new approach to workplace safety. It was readily conceded by senior counsel in the course of submissions that the effectiveness of these new systems has yet to be tested by long usage but I accept that there is evidence, which is significant, that there has been a real reduction in workplace accidents and no fatalities since the introduction of the new system. The evidence, however, shows a history of working plans, printed work rules and incident reviews which has failed to ensure the safety of workers. In my view, it is important to impress not only on this defendant but others who use the rail system and those in the industry generally that they must be diligent in ensuring the safety of persons in their workplace. The penalty which will be imposed in this particular case reflects that concern and objective.

34 The defendant has been found guilty of two charges arising out of the same workplace accident: a charge which could broadly be described as a failure to supervise and secondly, a charge that it did not provide a safe system of work. The prosecutor accepted that the defendant was entitled to the benefits of the principle of totality. In WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 100, the Full Court of the previous Industrial Court stated: The principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of the penalty by enabling a Judge to consider a single overall penalty which includes the circumstances of a second or further offence.

35 It has been held that the principle of totality applies where the penalty to be imposed is a fine (Santo Michael Sgroi (1989) 40 A Crim R 197 (at 203)): however, that principle may not have the same force in cases where the penalty is a fine as opposed to the cases where the penalty is imprisonment, where it is said to have a special operation (Stephen John Brown (1982) 5 A Crim R 404 (at 407).

36 The principle of totality has more recently been considered by the President, Wright J, in the context of the Occupational Health and Safety Act in WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284. His Honour referred to the High Court judgment in Pearce v The Queen (1998) 194 CLR 610 at 645 -646 where the court said that a judge sentencing a offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality. The High Court emphasised that sentencing was not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision: it was therefore all the more important that proper principles be applied throughout the process. In acknowledging that the principle had been applied in imposing fines under the Act, Wright J noted: However, as Kirby P observed in Camilleri's Stockfeed Pty Ltd v The Environment Protection Authority (1993) 32 NSWLR 683 at 704, although the 'principle of totality is applicable where the penalty imposed is by way of fine … it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation'. Similarly, it may be that the principle in Pearce v The Queen does not have quite the same force in the imposition of fines under the Occupational Health and Safety Act particularly, where as in this case, although two charges have been laid, they substantially involve, in terms of substance rather than form, one breach of the Act, albeit with a number of separate particulars of the offence, and where a single charge could have been laid in the light of the insertion in the Act of Section 49A: cf Page v Walco Hoist Rentals Pty Ltd (No 2). Nevertheless, in deference to the consideration that other judges of the Court have applied in terms of the approach in Pearce v The Queen, and accepting that the judgment of the High Court might be considered as referring generally to the appropriate policy approach as to sentencing, without distinguishing when sentencing involving the imposition of a term of imprisonment and sentencing involving the imposition of a fine, I consider that I should approach the matter in the terms laid down in Pearce v The Queen (par 29 at 295).

37 In the present case, I consider the two charges to be closely related to the extent that, as observed by the President, Wright J in the Yass Shire Council case, I can see no reason why all of the matters could not have been particularised in the one charge. On that basis, I propose to set a single penalty having regard, generally, to the principle of totality.

38 In my view, the factors of particular importance and which aggravate the offence are these: (a) the system involving Mr Mason on the night was a system of work for Traffic Officers generally and that is a proper indication of the risk to health and safety; (b) the accident was one which could be simply avoided by using an existing lookout for the maintenance team as a lookout for the Traffic Officer and was a system available under the existing Safe Working Units; (c) despite the obvious danger of Traffic Officers working at night in situations demonstrated by Mr Mason's accident, the defendant took no remedial steps for nearly four months until another accident at Bell in the Blue Mountains resulted in a fatality where a member of a maintenance gang was working by the rules whereby he was to "look after himself" and where there was no hand signaller; (d) it was only after the Bell fatality and injury to another worker that the defendant took steps to change the system by providing for the use of a hand signaller, witches hat markers, tape and barrier markers as the work required; (e) the defendant's system of review of major incidents by the incident investigation unit and database review appears to have failed to have responded to Mr Mason's accident and is a further indication of the absence of a safe system of work.

ORDERS 39 Considering the matters I have referred to above, I make the following orders: 1. The defendant is convicted of the two offences with which it was charged in matters IRC 2671 and IRC 2672 of 2000. 2. The defendant is fined the sum of $250,000 with moiety thereof to the prosecutor. 3. The defendant is to pay the prosecutor's costs of these proceedings as agreed or, failing agreement, as ordered by the Court. Any application made in regard to Order 3 should be filed and served within 21 days of today's date.

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