Inspector Batty v Autopool Pty Ltd

Consideration 11In 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] NSWIRComm 416; (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 ... 12In considering the objective seriousness of this offence in context, it is necessary to state the relationship between Autopool (this defendant) and Intercoast, the owner of the truck. Intercoast and its Director face separate charges brought under provisions of the Occupational Health and Safety Act 2000. 13The defendant, Autopool, had been engaged to repair the suspension on the B trailer of the rig owned by Intercoast and travelling the Pacific Highway from Queensland to Sydney. It had an air suspension which utilises air filled bags. Air is piped under pressure to the bags from a reservoir or air tank which is fed, in turn, by an air compressor on the prime mover. Each axle of the trailer has an airbag at both ends, near the wheels. The trailer repaired by the defendant had three axles and, therefore, six airbags. 14A ride height levelling valve connected to the centre of the middle axle continuously adjusted the supply or release of air to each air bag during travel, according to the terrain over which the truck was passing, in order to minimise tilting of the trailer bed. The trailer was also fitted with a separate dock levelling valve which could be operated manually when the rig was stationary, in order to supply or exhaust air from all the bags to bring the trailer bed to the same height as a loading dock. 15Mr Webb had replaced a damaged air bag on the driver's side of the B trailer. The new airbag and the other two airbags on the same side were fully deflated and required inflation after the repair. The rig rolled away when Mr Webb was watching the reinflation of these airbags. To reinflate the air bags, the prime mover's engine had to be running so that its air compressor could produce air and supply it to the air bags. This supply of air impacted on the braking systems. 16The rig had two braking systems. The service brakes were operated by a foot pedal and the parking brakes were operated by buttons on the prime mover's dashboard. Both braking systems were air operated and were supplied with air by the same air compressor that supplied air to the trailer suspension system. Both brake systems required the air pressure to be above a certain minimum level to operate. 17However, there was an important difference between the two braking systems. The service brakes required air pressure for engagement, whereas the park brakes required it for disengagement. The park brakes were spring brakes, and could only be released when the air pressure was sufficient to overcome the force of the springs. When the air pressure dropped below this level, the release of tension in the springs applied the brakes. 18The brake and suspension systems shared sufficient components that the supply of air to the B trailer for the inflation of its air bags also disengaged the park brakes of the rig. 19It is contended the defendant corporation failed in its provision of equipment for use in breakdown servicing; in its system of work for the conduct of breakdown servicing; the provision of instructions to employees in relation to the proper conduct of breakdown servicing and the supervision of its employees when performing a breakdown servicing. 20At the time of the offence, Autopool used both purpose manufactured wheel chocks and blocks of wood to chock vehicles under repair. Mr Webb stated that on the morning of the offence he looked around the workshop for purpose-manufactured wheel chocks but none were available. As a result he chose the biggest blocks of timber available. The first chock had dimensions of approximately 90 mm wide x 45 mm high x 500 mm long. The second chock was made up of two wooden blocks with similar dimensions to the first chock but were joined together to form one chock that was 90 mm high. 21In his affidavit, Mr Webb opined: The rubber chocks at Gilbert & Roach are harder than the timber chocks. The timber chocks appear to me to have a greater ability than rubber chocks to compress around slight surface irregularities. This makes them less prone to slip. I have seen rubber chocks slip when a truck's brakes are released and the chocks take the weight. On each such occasion the driver was in the cab and applied the service brakes. I then repositioned the chocks. 22Dr Hart, the expert, opined wooden chocks have some advantages over rubber chocks. They are broader so they span a dual wheel, whereas rubber chocks are the width of a single wheel; they deform less under the weight of a vehicle and they are more readily available in adequate numbers. 23However, the defendant conceded it had rubber chocks that were taller than the timber blocks used by Mr Webb and it acknowledges on 14 November 2008 those rubber chocks would have offered more resistance to the forces that caused the rig to roll away than the timber blocks. 24The defendant corporation contends its employee was aware of the risk of a rig rolling away, and took precautions against its occurrence. Those precautions included wheel chocks as protection against the rig rolling away. However, as the purpose-manufactured rubber wheel chocks (owned by the defendant) were taller than the timber chocks used by Mr Webb, the defendant concedes they would have better restrained the rig than did the timber chocks, despite, as the procedure reveals, there being some of the advantages in using timber chocks, as opined by Dr Hart and Mr Webb. 25I am satisfied there was a failure to provide the appropriate equipment for Mr Webb to perform his task and the defendant, notwithstanding Mr Webb's opinion, failed to provide Mr Webb with the appropriate equipment to secure the wheel of the truck throughout the repair. 26The further element to the offence was the failure of the system of work of the defendant corporation, which failure created a risk to the safety of its employee, Mr Webb, from the movement of the B-Double. 27Autopool did not have in place a formal risk assessment process and did not provide its employees with any formal risk assessment documentation to be completed, for the purpose of identifying and assessing hazards and/or identifying and implementing appropriate controls. When spoken to after the event, Mr Lawrence, Autopool's Service Manager, stated the company relied on the training, experience and skill of its mechanics to conduct risk assessments in accordance with their training. 28In relation to the replacement of airbags on heavy combination vehicles, Autopool did not have formally documented work practices. Autopool relied on the service manuals issued by the various manufacturers and trade training, experience and skills of its various employed mechanics to determine the procedure to be applied. This is not a proper system of work. 29In order to meet the requirements of s 8 of the Act, the defendant's system of work for repairs of vehicles on the road needed to be "coherent and systematic" so that all drivers understood what was required of them during a roadside repair. In order to ensure such a system was safe, as required by s 8, it was necessary for the defendants to lay down specific rules and procedures designed to guard against and prevent the type of failure which occurred in the present case: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2003) 123 IR 121 at [78], [101(3)] per Walton J, with Wright J agreeing at [3] citing with approval Cullen v State Rail Authority (1989) 31 IR 207 at 219. See also State Transit Authority of NSW known as Sydney Ferries v Inspector Corrie Guillarte (2003) 123 IR 237. 30Similarly, Peterson J in Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286 said at [29]: One can understand a developed perception that experienced bushmen might be resistant to instructions relating to how their work is to be done safely but this cannot remove the absolute obligation imposed by the Act upon an employer or contractor or other relevant person on whom the duty is imposed to ensure work is carried out in a safe manner. It is simply insufficient to give general directions and to, effectively, hope for the best. 31Likewise, Haylen J in Inspector Barnard v Rail Infrastructure Corporation (2001) 109 IR 209 said at [107]: It is difficult to accept that a system that leaves it to employees, even trained employees, to look after themselves can be described as a safe system of work. (see also Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55). 32However, the defendant contends in the circumstances outlined there should be some mitigation as to the seriousness of the offence given the timber chocks were adequate until the driver of the rig did not reapply the brake. These circumstances, it contends, mitigate the objective seriousness of the defendant's failure to provide purpose-manufactured wheel chocks. 33On the agreed facts, Mr Webb told Mr Phillips as follows: Stay in the cabin whilst I check the air bags. Keep your foot hovered above the brake in case the truck rolls. Reliance is placed by the defendant corporation upon the proposition the driver of a rig "disobeyed" the repairman's instruction and that put its employee at risk. However, there is an absolute obligation on the employer to put in place a system of work to protect Mr Webb. 34Although Mr Webb was not injured on the date of the offence, he was working under the heavy vehicle when it commenced to move, which placed him at risk of serious injury. 35There was a failure by the defendant corporation to put in place a safe system of work for this task. It was a serious offence as Mr Webb was at risk to his safety from the movement of the B-double vehicle while he was performing a repair. Mr Webb knew the vehicle needed chocking. He was not provided with the proper equipment, that is, rubber wheel chocks. 36The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being considered to be more serious (Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 at [81]-[82]; Department of Mineral Resources of New South Wales (Chief Inspector McKensey) v Kembla Coal and Coke Pty (1999) 92 IR 8). As was observed by the Full Bench in Fletcher Constructions Australia Ltd v WorkCover Authority (Insp Fisher) (1999) 91 IR 66 (at 79): In the case of an offence under s 15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: See Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. 37Autopool knew that there was a danger that the vehicle might move while its employee was repairing it, especially at the point when he was checking his work and inflating the airbags. The conduct of a proper risk assessment by the defendant would have disclosed the risk, as Dr Hart opined, it was well known that in the process of re-inflating airbags, the vehicles moved. There was a foreseeable element to the offence. 38It is a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures are not taken, even though such measures were available and feasible (Powercoal at [90]). Simple measures would have ensured the use of purpose-manufactured wheel chocks and a proper risk assessment of the repair task would have identified a need for them. 39The defendant corporation issued an instruction on 25 November 2008 that no timber chocks were from then on to be used and only the purpose-manufactured wheel chocks were to be used. The defendant implemented, as well, other measures to address its failures after the offence. Those steps demonstrate the availability of steps that the defendant corporation could have taken to eliminate or to otherwise reduce the risk. As was observed in Inspector Callaghan v Saunders Constructions (unreported, Maidment J, CT 1062 of 1993, 26 November 1993): Commendable though it is to introduce appropriate occupational health and safety measures after the event the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments irrespective of their own laxities. (See also Department of Mineral Resources v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 30 per Walton J, Vice President.) 40The objective seriousness of this breach is therefore compounded by the fact that these measures were not taken (see Inspector Paul Kenneth Wade v Ken Matthews Haulier Pty Limited t/as Ken Matthews Landscaping supplies [2005] NSWIRComm 85 at [35]). 41In Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 (at [74]) the Full Bench said: [The] Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that 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 Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare ... 42As to specific deterrence, the defendant continues to perform roadside breakdown repair work. It has taken steps to reduce or avoid the risks of that work. The evidence persuades it has issued an instruction that the only wheel chocks to be used are purpose-manufactured wheel chocks; it has prepared an equipment checklist for its breakdown vehicle; it has prepared a printed form in which mechanics record their performance of a formal hazard identification and risk assessment process, and directed that it be used and it has issued an instruction that mechanics are not to receive assistance from truck drivers when performing roadside repairs. 43Prior to August 2006, the Sutton Group operated a paper-based OH&S management system throughout its organisation, managed by its Risk Manager. In August 2006, the Group employed an OH&S Manager, Mr Marino Gomes, to improve and develop the Sutton Group OH&S system. The paper based OH&S management system responded to lag indicators. It was an example of traditional auditing after the fact. 44In or about November 2006, Mr Blackburn, a director of the defendant Corporation and the Company Secretary (he is also Finance Director of the Sutton Group of companies), initiated and commenced to supervise the conversion of the safe work systems to a real time OH&S management system that provides Sutton Group management with on-line access to all OH&S management system information, alerts and reports for the purpose of prompt review and follow up action as required. He worked with the OH&S Manager and in-house computer programmers to develop the computerised Sutton Safety System, which went live in June 2007 and now forms the basis for the management of OH&S throughout the Sutton Group. The Sutton Safety System is now an online real time safety system. The Sutton Safety System was designed to meet the requirements of the Occupational Health and Safety Act 2000 (NSW) and Regulation 2001 as well as Codes of Practices and applicable Australian and ISO Standards. 45Mr Gomes is Group OHS manager. He produced the computerised OH&S Management System directed to company, division, branch and department. He gave the instruction after the incident as to the use of only manufactured chocks and has ensured this instruction was implemented. He helped the defendant Corporation design and distribute the Breakdown Risk Assessment Checklist and the Breakdown Service Van Checklist and ensured they were provided to the defendant's breakdown mechanics. A direction has been given for each mechanic to complete the documentation prior to the commencement of every off-site breakdown repair. 46Further, the Group Corporation must regularly audit the activities given the hierarchical system of management and control, comprising company - division - branch and site levels. What appears in this circumstance is there was in 2007 put in place a well researched step-by-step plan to ensure safety at worksites. But in the repair shop at Hexham, under the Sutton Group's auspice, there was a failure to risk assess each task and identify safe working procedures. The risk of the movement of vehicles in the repair of the airbags task was known. It is not an acceptable explanation from an employer that its employees are skilled. It is, however, evident, after the event, a more rigorously implemented safer system is in place at road sites. The defendant corporation is now fully aware of its obligations. However, a small element of specific deterrence will be incorporated into penalty. 47As to general deterrence, once more it must be re-iterated to employers that each task it requires its employees to perform must be risk assessed and the obligation on the employer is to design each task in a safe manner. The obligation in this circumstance was to ensure there was protection against a known risk. Here, the defendant knew movement of a vehicle takes place when its employee is required to inflate air bags on a B-double vehicle but it failed to ensure such basic elements as a defined system of work was in place for the task and failed to provide the proper equipment for the performance of the task. There shall be an element of general deterrence in the consideration of penalty. 48In a consideration as to penalty there can be mitigation if there is a contribution to the risk by a third party (see WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (1999) 95 IR 383 at [454]). However, in a prior but associated matter, Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55, the Court found there was a small contribution to the risk by Intercoast in its failure to have in place a safe system for road repair by failing to instruct its employee, Mr Philips, not to take part in the repair process and to stay clear of his vehicle during the repair. Reliance by Autopool is placed upon the view of Dr Hart that a driver who leaves the B-Double Cabin with the engine on and no brakes applied contributes to the risk. The system of work on the relevant date was designed in the knowledge held by Autopool that in the process of checking the inflation/deflation of the airbags there would be some movement by the vehicle. The system required the chocks to hold the vehicle. Mr Phillips did take part in the repair process. He was not properly instructed and trained. There will be a small mitigation of penalty for a contribution by Intercoast to the risk. 49Subjective matters are given consideration in mitigation of penalty for this serious offence. The defendant has one prior conviction under OH&S legislation in 1998, for which it was fined $1500 by the Chief Industrial Magistrate. 50The maximum penalty available for the present offence is, therefore, $825,000. The penalty to be imposed in the present case is to be determined by reference to that maximum (WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163; Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 (at 698-699)). 51Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 has been amended and now provides in relation to remorse as a mitigating factor as follows: 21A(3)(i)the remorse shown by the offender for the offence, but only if: (i)the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii)the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 52The prosecutor submitted that while Autopool, through its director Mr Blackburn, has expressed "remorse for the incident" Autopool has not provided evidence that it has accepted responsibility for its actions that constituted the offence as required for the satisfaction of s 21A(3)(i) of the s 21A(1) of the Crimes (Sentencing Procedure) Act 1999. 53However, I accept the defendant has demonstrated its contrition by its co-operation with the investigation of the offence by the prosecutor. Mr Blackburn not only expressed his remorse for the incident, he also assured the Court of his commitment, and the commitment of his fellow directors, to ensuring that employees of the defendant are provided with the best possible safety system to ensure their health and safety at work. The defendant through its counsel, Mr Crow, also conveyed contrition and remorse to the Court. There has been the appropriate care taken of Mr Webb by the corporate defendant. This has been a terrible experience for him. He was not working within a safe system of work. He was at risk of serious injury given the failure of the defendant corporation to have a safe system of work in place. 54I accept that the defendant's contrition is also demonstrated by the steps it has taken since the incident on 14 November 2008 to eliminate risks to health and safety in its roadside repair operations. 55An early plea of guilty entitles a defendant to a discount on penalty. Consideration of the utilitarian value of a plea is a requirement by s 22 of the Crimes (Sentencing Procedure) Act 1999. Having regard to the history of this matter the defendant contends it should have the benefit of the entire discount on penalty that is available in respect of a plea of guilty. 56Where a defendant enters a plea of guilty, it is also appropriate to apply the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 at 138) and WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of New South Wales (2000) NSWIRComm 179 at [40]. Although the plea of guilty of Autopool was not entered for some time after the commencement of the proceedings (on the day of the commencement of the trial on liability) in view of the amended application, it is submitted by the prosecutor that Autopool is entitled to be treated as having pleaded to the charge at an early stage. The Court accepts, in the circumstances, there was a significant "utilitarian value" to the Court and to the State, in terms of the saving of resources that has flowed from the plea of guilty. There shall be a discount of 20 per cent for the utilitarian value of the plea. 57I accept under the banner of the corporate group of companies, there is good corporate citizenship. The group employs over 1300 people. It employs as in this case skilled tradesmen in regional areas. It is a significant employer in regional NSW. Its generosity to charities is well known and financially significant. Some of its generosity goes to activities in the regional areas in which it operates. That is to be commended. 58In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), in a consideration of breaches under the Occupational Health and Safety Act 1983, it was held by Hungerford J: I ... would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. 59This was a most serious offence. The authorities require penalty to reflect the seriousness of the offence. The mitigating factors referred to above are given consideration. Orders 60The Court makes the following orders: 1.In Matter No IRC 1258 of 2010, I find the defendant guilty of the offence as charged. 2.The defendant is fined in the sum of $220,000 with a moiety to WorkCover Authority of New South Wales. 3.The defendant shall pay the costs of the prosecutor as assessed or as agreed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2012

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