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[2012] NSWIRComm 56
Industrial Relations Commission (NSW)
2012-03-22
Kavanagh J, Maidment J, Leonard J
Original judgment source is linked above.
WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of New South Wales (2000) NSWIRComm 179 Category: Principal judgment Parties: Inspector Ian John Batty (Prosecutor) Autopool Pty Ltd t/as Gilbert & Roach (Defendant) Representation: S Crawshaw SC with a Mitchelmore of counsel (Prosecutor) R Crow of counsel (Defendant) WorkCover Authority of NSW (Prosecution) Workplace Law (Defendants) File Number(s): IRC 1258 of 2010
Judgment 1This prosecution is brought by Inspector Ian Batty of the WorkCover Authority of New South Wales against Autopool Pty Ltd t/as Gilbert & Roach under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") by way of an amended Application for Order. 2It is alleged the defendant, being an employer, on 14 November 2008, at the RTA Inspection Facility at Twelve Mile Creek, near Hexham, in the State of New South Wales ("the premises"), contravened s 8(1) of the Act in that it failed to: ensure the health, safety and welfare at work of all its employees and in particular, Michael Webb, contrary to section 8(1) of the Act. . Particulars of the Charge The risk 1.Webb was exposed to a risk of being struck by a heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility. Particulars of the defendant's acts and omissions Particulars of the defendant's failings in relation to the provision of equipment for use in Breakdown Servicing 2.The defendant failed to provide Webb with purpose manufactured wheel chocks designed for use with heavy vehicles of the size and weight of the vehicle under repair or servicing. 3.The defendant failed to ensure that plant provided for use by its employees at work, namely blocks of wood provided by the defendant for use by its employees as "wheel chocks" were safe and without risk to health when properly used. 4.The defendant should not have used of blocks of wood as wheel chocks for heavy vehicles. Measures which the defendant should have taken but failed to take in relation to the provision of equipment for use in Breakdown Servicing 5.The defendant should have used purpose manufactured wheel chocks, designed for use with heavy vehicles of the size and weight under repair. 6.The defendant should have provided sufficient purpose manufactured wheel chocks, designed for use with heavy vehicles of the size and weight under repair, as were necessary to ensure that they were available for use at its Hexham workshop as and when required, including for use in the provision of breakdown services. 7.The defendant should have provided Webb with purpose manufactured wheel chocks designed for use with heavy vehicles of the size and weight of the vehicle under repair. Particulars of the defendant's failings in relation to system of work with respect to the conduct of Breakdown Servicing 8.The defendant failed to provide a system of work with respect to the conduct of breakdown servicing, including the conduct of breakdown repairs on heavy combination vehicles that was safe without risks to health of its employees, in particular, Michael Webb. Measures the defendant should have taken but failed to take in relation to its system of work with respect to the conduct of Breakdown Servicing 9.The defendant should have undertaken a formal, written hazard identification and risk assessment prior to the commencement of breakdown repair or servicing work, which included identification of the terrain on which the subject vehicle was to be serviced, for the purpose of ascertaining, amongst other hazards and risks, whether there was a risk of the subject vehicle rolling away and whether, having regard to the size, weight and location of the vehicle under repair and the work to be performed on the vehicle under repair, the controls available were sufficient to control the risk of the vehicle rolling away during the performance of repair or servicing work. 10.The defendant should have put in place purpose manufactured wheel chocks, designed for use with heavy vehicles of the size and weight of the vehicle under repair to chock the wheels of the vehicle under repair, prior to commencing repair or servicing work. 11.The defendant should have undertaken any aspect of repair work or servicing of heavy vehicles, which required the brakes of the vehicle under repair to be released, with the wheels of the vehicle under repair chocked with purpose manufactured wheel chocks designed for use with a heavy vehicle of the size and weight of the vehicle under repair in place, so as to reduce or eliminate the risk of the vehicle rolling away. 12.The defendant should have isolated the vehicle under repair or servicing work from persons not involved in the performance of that work. 13.In the alternative, the defendant should have controlled third party personnel requested to assist in the course of repair or servicing work during the course of their involvement in the work, including: (a)the provision of clear instructions identifying the role that the third party was to undertake in the repair or servicing work; and (b)the provision of clear safety instructions regarding the role that the third party was to undertake in the repair or servicing work; 14.The defendant should have provided mechanics rostered to perform breakdown repair and breakdown servicing work with a written inventory or checklist of equipment, which was to be carried on the breakdown service vehicle then in use; such inventory to include reference to the availability for use in the course of breakdown repair and servicing work of purpose manufactured wheel chocks designed for use in chocking the wheels of a vehicle of the sizes and weight of the vehicle to be repaired or serviced. 15.The defendant should have provided mechanics rostered to perform breakdown repair and breakdown servicing work with a written, formal risk assessment document and required its completion by each mechanic prior the commencement of any breakdown repair or servicing work, such as the "Gilbert and Roach Breakdown Risk Assessment Checklist" [Copyright 2009]. Particulars of the defendant's failings in relation to the provision of instructions with respect to the conduct of Breakdown Servicing 16.The defendant failed to provide such instructions with respect to the conduct of breakdown mechanical repairs and servicing of heavy vehicles as were necessary to ensure the health, safety and welfare at work of its employees, and in particular, Michael Webb. Measures the defendant should have taken but failed to take in relation to the provision of instructions with respect to the conduct of Breakdown Servicing 17.The defendant should have instructed its employees that only purpose manufactured chocks, designed for use in chocking the wheels a vehicle of the size and weight of the vehicle undergoing repair or servicing work, were to be used. 18.The defendant should have instructed its employees that blocks of timber, not designed and manufactured for use as wheel chocks, should not be used to chock the wheels of vehicles undergoing repair or servicing work. 19.The defendant should have instructed its employees that any aspect of repair work or servicing of heavy vehicles, which required the brakes of the vehicle under repair to be released, was performed by its mechanics with the wheels of the vehicle under repair chocked with purpose manufactured wheel chocks designed for use with a heavy vehicle of the size and weight of the vehicle under repair in place, so as to reduce or eliminate the risk of the vehicle rolling away 20.[Intentionally blank] 21.[Intentionally blank] 22.[Intentionally blank] Particulars of the defendant's failings with respect to the supervision of Breakdown Servicing 23.The defendant failed to provide such supervision with respect to the performance by its employees as was necessary to ensure the health, safety and welfare of its employees at work and, in particular, Michael Webb. Measures the defendant should have taken but failed to take in relation to the provision of supervision with respect to the conduct of Breakdown Servicing 24.The defendant should have provided such supervision as was necessary to ensure that blocks of wood were not used as wheel chocks in the performance by its employees of repairs and/or servicing on heavy vehicles including: (a)ensuring that blocks of wood were not made available for use as chocks, including the storing of blocks of wood for use as chocks in the defendant's tool store at the Hexham workshop; (b)ensuring that blocks of wood were not used to chock the wheels of vehicles undergoing repair or servicing work in the defendant's workshop at Hexham; (c)ensuring that sufficient purpose manufactured wheel chocks designed for use with heavy vehicles of the types routinely repaired in the workshop at Hexham and in the course of breakdown service and repair work were available in the workshop and the tool store to alleviate the need for blocks of wood to be used as wheel chocks; (d)ensuring that the mechanic assigned to breakdown service and repair work had and obtained access to all the equipment necessary to conduct breakdown repairs and servicing, including purpose manufactured wheel chocks designed for use with a vehicle of the size and weight of the vehicle to be repaired or serviced. 25.As a consequence of the acts and omissions of the defendant, as particularised above, on 14 November 2008 Michael Webb was exposed to a risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales. 3The defendant pleads guilty to the charges. 4Mr S Crawshaw SC with Ms A Mitchelmore of counsel appeared for the prosecution and Mr R Crow, of counsel, appeared for the defendant. The prosecutor relied upon an Agreed Statement of Facts with annexures, Factual Inspection Report of Inspector Batty; Transcript of proceedings in Morfea and Intercoast Refrigerated Transport dated 13 March 2012 (Mr Michael Webb's evidence) and Prior Conviction Certificate. The defendant relied upon the Affidavit of Michael Webb dated 27 October 2011; Affidavit of Robin Allan Blackburn Webb dated 27 October 2011; Affidavit of Marino Albert Gomez dated 27 October 2011; Report of Dr Peter Hart dated 19 September 2011; three colour photos and Safe Operations Procedure No 24 dated 1 February 2004 re Breakdown in Field predating the incident. 5There was an Agreed Statement of Facts which relevantly reads: 1.The defendant: Autopool Pty Ltd t/as "Gilbert & Roach" 2.The defendant was incorporated on 11 February 1963. 3.The defendant is, and was at all material times, a body corporate entitled to be prosecuted in and by its corporate name and style. 4.The defendant maintains and, at all material times, maintained its registered office at Suttons Motors Management, Level 1, 134 William Street, Woolloomooloo in the State of New South Wales. 5.The defendant, trading as Gilbert & Roach, carries on, and at all material times carried on business performing mechanical repairs on motor vehicles, including a heavy vehicle breakdown repair service, from a workshop located at 320 Pacific Highway at Hexham in the State of New South Wales. 6.At all material times the defendant was an employer. 7.At all material times the defendant employed Michael Webb (Webb) as a motor mechanic. 8.At all material times Webb worked as a mechanic based at the defendant's workshop at Hexham. Webb commenced work at the defendant workshop at Hexham as an apprentice motor mechanic in or about 2000 and remained in the defendant's employ, as a tradesman, after he completed his apprenticeship Intercoast Refrigerated Transport Pty Ltd (ACN 100 873 774) (Intercoast) 9.Intercoast was incorporated on 12 June 2002. 10.Intercoast is, and was at all material times, a body corporate entitled to be prosecuted in and by its corporate name and style. 11.Intercoast maintains its registered office at Suite 20, Level 4, 1 Mona Vale Road, Mona Vale in the State of New South Wales. 12.Anthony Morfea is, and was at all material times, the sole director and the company secretary of Intercoast. 13.Intercoast carries on business, and at all material times carried on business, as a transport company, including the provision of long haul interstate freight transport services. 14.Intercoast is and, at all material times, was an employer. 15.At all material times Intercoast employed Gregory Keith Phillips (DOB 28.02.1978). 16.At all material times, Phillips was the holder of a Queensland Heavy Vehicle Driver Licence, Licence No. 39 785 000, effective 13 May 2008 which authorised Phillips to drive heavy combination vehicles, including a B-Double. 17.On or about 25 August 2008, Phillips commenced employment with Intercoast as a truck driver. Phillips' principle duties whilst working for Intercoast consisted of driving long haul heavy combination vehicles on various routes, including interstate routes. The Incident 18.Phillips commenced the long haul journey immediately preceding the subject trip at approximately 3pm on Tuesday 11 November 2008. Phillips ceased long haul driving duties with respect to the long haul journey immediately preceding the subject trip at approximately 3.30 am on Wednesday, 12 November 2008. 19.On 12 November 2008 Phillips was rostered to drive a B-Double, identified by Intercoast as T60, carrying a load of dairy produce from Sydney to Brisbane, departing Sydney at 6pm EST. A B-Double is a heavy combination vehicle consisting of a prime mover and two trailers. The B-Double which Phillips was rostered by Intercoast to drive from Sydney to Brisbane on 12 November 2008 consisted of a Kenworth K104 Model Prime Mover bearing Victorian registration no. VV29GZ and two trailers. 20.At all material times the prime mover, registration no. VV29GZ, was fitted with a GPS transponder. 21.At the time of the subject incident, Phillips was driving a B-Double consisting of a prime mover bearing Victorian registration no VV29GZ, a Maxi-Tran A trailer bearing Queensland registration no. 215 QHY and a Maxi-Tran B trailer bearing Federal Interstate registration no. VT 85 IP. 22.In addition to the GPS transponder attached to Prime Mover, registration no. VV29GZ, the A trailer, registration no. 215QHY, was fitted with its own GPS transponder. 23.The GPS transponders fitted to the heavy combination vehicle enabled Intercoast to obtain, in real time, details of the location, status (including speed), heading and distance travelled by the subject heavy combination vehicle. This information was capable of being monitored by Intercoast on a computer in real time, or printed off, in what is described as an "Activity Report". 24.The Activity Report from the GPS transponder fitted to the prime mover bearing registration no. VV29GZ for the period between about 6pm Eastern Standard Time ("EST") and about 3.45am EST on 14 November, 2008 indicates the following: (a)Phillips resumed long haul driving duties, departing from a depot at Arndell Park in the State of New South Wales, at approximately 7.09 pm EST on Wednesday 12 November 2008; (b)Phillips had a break of approximately 1 hour and 1 minute, at Beresfield, from about 9.16 pm to about 10.17 pm EST on Wednesday 12 November 2008; (c)Phillips had a break of approximately 5 hours, at Wang Wauk, from at about 11.53 pm EST on Wednesday 12 November 2008 to about 4.53 am EST on Thursday 13 November 2008; (d)Phillips had a break of about 24 minutes, at Boambee Valley, from about 7.48 am to 8.12 am EST on Thursday 13 November 2008; (e)Phillips had a break of approximately 2 hours and 29 minutes, at the depot at Tingalpa in Queensland, from about 1.15 pm to about 3.44 pm EST on Thursday 13 November 2008; (f)Phillips had a break of approximately 1 hour and 37 minutes, at Stapylton in Queensland, from about 4.15 pm to about 5.52 pm EST on Thursday 13 November 2008; (g)Phillips had a break of approximately 1 hour and 13 minutes, at Coffs Harbour, from about 10.06 pm to about 11.19 pm EST on Thursday 13 November 2008 whilst his vehicle was loaded with produce for delivery to Melbourne; (h)Phillips had a break of about 10 minutes, at Possum Brush, at about 2.05 am to 2.15 am EST on 14 November 2008; and (i)Phillips had a break of about 8 minutes, at Nerong, at about 3.10 am to 3.18 am EST on 14 November 2008. 25.At about 3:42 am EST on 14 November 2008 Phillips was driving the heavy combination vehicle in a southerly direction on the Pacific Highway towards the NSW RTA Inspection Facility near Twelve Mile Creek (the "RTA Inspection Facility"). At that time and place, sensors located on the highway north of the entrance to the RTA Inspection Facility, and connected to the NSW RTA Truck Scan computer system, identified a vehicle weight discrepancy and an Optical Character Reader [OCR] discrepancy with respect to the subject heavy combination vehicle. 26.As a consequence of the vehicle weight discrepancy and the OCR discrepancy, the Truck Scan computer system directed Phillips to drive the subject heavy combination vehicle into the RTA Inspection Facility. 27.At about 3.45 am Phillips drove the subject heavy combination vehicle into the RTA Inspection Facility. 28.After Phillips drove the subject heavy combination vehicle into the RTA Inspection Facility, RTA Inspectors Glenn Waddingham and Timothy John Smith, who were on duty at the RTA Inspection Facility that morning, saw the heavy combination stop outside the control room at the RTA Inspection Facility. Smith greeted the driver and informed him that Smith and Waddingham were going to perform an RTA regulation check. Smith asked the driver to produce his licence and his work diary [i.e. driver's logbook]. Phillips then handed his licence and his logbook to Smith, who in turn handed the licence and the logbook to Waddingham. Smith then proceeded to undertake an inspection of the heavy combination vehicle whilst Waddingham carried out a licence and logbook check. 29.In the course of his inspection of the heavy combination vehicle, Smith entered the registration number of the prime mover into the RTA computer system and then weighed the heavy combination. The weights of the heavy combination vehicle accorded with the Mass Loadings and Access Regulations. The measured mass of the heavy combination vehicle was 60.3 tonnes. The assessed gross mass of the heavy combination vehicle was 59.3 tonnes. 30.Smith then carried out a visual inspection of the heavy combination vehicle. During his inspection, Smith found that the three suspension airbags on the right hand side of the B trailer were deflated. Smith then prepared and issued a red label defect notice, no. HVN0081026, with respect to the defective air suspension on the B trailer, effectively grounding the heavy combination until the subject defect was repaired. 31.Whilst Smith was inspecting the heavy combination vehicle, Waddingham carried out a licence check of Phillips' licence and an examination of Phillips' driver logbook. 32.On examining Phillips' logbook, Waddingham found discrepancies in the entries in the logbook for the period 12 to 14 November 2008. Those discrepancies related to insufficient rest breaks, exceeding driving hours and a failure to make relevant entries for the 10 hour period immediately preceding the inspection. In particular, Waddingham examined pages Q371493163, 64 and 65. These pages disclosed that the longest continuous break in the 24 hour period commencing at 6 pm on 12 November 2008 was approximately 4.75 hours. These pages also disclosed that in the period between 6 pm on 13 November 2008 and the time of the interception of the heavy vehicle combination at the RTA Inspection Facility, at 3.45 am on 14 November 2008, Phillips' longest break was little more than 1 hour. In addition, these pages disclosed that Phillips had worked in excess of 12 hours in the preceding 24 hour period. 33.Waddingham then commenced preparation of an RTA Breach Report, Report No. TBR00044225, and an RTA Breach Continuation Report, Report No. 50514, in relation to the discrepancies he had identified in Phillips' logbook. 34.Waddingham spoke with Phillips regarding the discrepancies he identified in the Logbook: Waddingham said:"Are you on standard 12 hours work or a fatigue scheme?" Phillips said: "Standard 12 hours." Waddingham said:"How many hours can you work for in a 24 hour period?" Phillips said: "12 hours." Waddingham said:"What is the minimum continuous rest break you must have in a 24 hour period?" Phillips said:"6 hours." Waddingham said: "Why have you not made any entries since leaving Yatala yesterday afternoon and what have you been doing since Yatala?" Phillips said: "I forgot to fill it in. I drove this truck down to Coffs Harbour where I got loaded then had a shower and feed, I would have been there about 2 hours then I have driven down to here." Waddingham said:"Did you drive there by yourself?" Phillips said:"Yes." Waddingham said:"Can you explain why you have exceeded your maximum 12 hours work in any 24 hour period for this 24 hour period and not had your minimum 7 hour continuous rest break for these two 24 hour periods?" (Periods shown to driver). Phillips said:"I didn't know I had, I'm still trying to get my head around logbooks, they don't use them in the Northern Territory, I just pull over when I get tired." Waddingham said:"Who instructs you to drive?" Phillips said:"No one." Waddingham said: "Who tells you where to pick up and drop off the loads?" Phillips said:"The freight manager at what ever depot I'm at, no-one in particular, some of the depots have someone new there each time I'm there." Waddingham said:"I will report this matter to the RTA." 35.Smith then directed Phillips to park the heavy combination vehicle in the designated parking area at the RTA Inspection Facility. Smith then saw Phillips drive the heavy combination to that area. 36.About 10 minutes after Phillips parked the heavy combination vehicle, in the designated parking area at the RTA Inspection Facility, Phillips returned to the control room (also known as the "pie hut") and got some hot water for coffee from Smith and Waddingham. 37.Smith and Waddingham left the RTA Inspection Facility later that morning at about 7.30 am. At that time the heavy combination vehicle was still parked in the designated parking area at the RTA Inspection Facility. 38.Phillips contacted Intercoast's overnight supervisors, based in Melbourne, and informed Intercoast that the heavy combination vehicle had been "grounded" and required repairs. Phillips also informed Intercoast's overnight supervisors that he was "out of hours" and was required to take a 7 hour break. 39.Intercoast contacted the defendant at Hexham and arranged for the defendant to send a motor mechanic to the RTA Inspection Facility to inspect and repair the subject heavy combination vehicle. 40.On 14 November 2008 Clinton Duncan, Webb's foreman at the defendant, assigned Webb to attend at the RTA Inspection Facility to inspect and repair the subject heavy combination vehicle. Webb was informed that the vehicle was grounded at the RTA Inspection Facility and required a replacement airbag. 41.On 14 November 2008 the breakdown service vehicle normally used by the defendant to undertake breakdown service tasks was unavailable. As a consequence, Webb used a company "ute". 42.The ute was not fitted out or maintained by the defendant as a road service vehicle. Therefore, prior to departing the defendant's workshop, Webb loaded the company ute with the tools and equipment he believed he would require for an airbag repair, including his toolbox, some wheel chocks and some stands. The chocks which Webb loaded were blocks of timber used as chocks. Webb also took a replacement airbag. 43.Webb arrived at the RTA Inspection Facility between about 9.30 am and 10 am on 14 November 2008. 44.Shortly after arriving at the RTA Inspection Facility, Webb approached the cabin of the prime mover, where Webb observed Phillips sitting in the driver's seat of the vehicle. 45.When Webb knocked on the door of the vehicle, Phillips alighted from the cabin and told the mechanic that the defect was on the "B" or rear trailer. 46.Following an inspection of the air suspension system, Webb ascertained that the trailer required a different type of airbag. Webb then told Phillips that he had to return to work [i.e., Hexham] to obtain the correct airbag. 47.Webb and Phillips then travelled to the workshop at Hexham to obtain the right airbag. Webb and Phillips then drove to SX Trailers at Sandgate to obtain some fittings which Webb needed to reconnect the air supply on the B trailer to the other airbags on the right hand side of that trailer. 48.In the course of the return journey to and from town, Phillips told Webb that he had only had a few hours sleep in a couple of days. Nonetheless, Webb observed after the event that Phillips did not appear to be fatigued and was "pretty coherent". On that journey Phillips also requested that Webb stop at a food outlet and Phillips bought some food and drink. 49.Upon their return to the parking bay at the RTA Inspection Facility, Webb commenced replacing the defective middle airbag, situated between the second and third axle of the triaxle B trailer of the subject heavy combination vehicle. 50.Webb placed his tools and the replacement parts on the ground on the offside of the B trailer. Webb then returned to the ute to get the wheel chocks, which he had loaded at the workshop that morning. The chocks were made from blocks of wood. The first chock had dimensions of approximately 90mm wide x 45mm high x 500mm long. Webb placed this chock in front of the front driver's side drive tyres of the prime mover. The second chock was made up of two wooden blocks which had similar dimensions to the first chock but the two blocks were joined together to form one chock 90mm high. The mechanic placed this chock in front of the driver's side steer tyre of the prime mover. 51.Webb then went underneath the B trailer and replaced the defective air bag. 52.Whilst Webb was replacing the defective airbag on the B trailer, Webb observed that the main air supply to the defective air bag had been bypassed using a range of airline fittings and that the main air supply to the three air bags on the driver's side of the trailer had been crimped off with "some cable ties". Webb then replaced the fittings that had been used to bypass the driver's side airbags and cut the cable ties to restore the air supply to all three airbags on the driver's side of the B trailer. 53.Webb then got out from under the B trailer and asked Phillips to get back in the cabin of the prime mover and to start the engine of the prime mover to fill the brake and suspension systems of the heavy combination with air. Webb asked the driver to depress the foot brake before starting the engine. 54.[LEFT BLANK TO RETAIN CONSISTENCY OF NUMBERING] 55.Webb saw Phillips get back into the cabin of the prime mover, place his foot on the brake pedal and start the engine of the prime mover. When Webb was satisfied that the air had built up to the correct pressure, he instructed Phillips to release the park brakes and then, in turn, to release the foot brake. Webb then saw Phillips release the park brake and, in turn, the foot brake. 56.As Phillips released the foot brake, Webb observed the heavy combination vehicle move forward less than an inch until it came hard up against the two wheel chocks and then Webb observed that the combination became stationary again. When interviewed after the accident by the prosecutor, Webb said he told the driver to "keep your foot hovering above the brake pedal, I want you to come right off". Webb observed that when the driver took his foot right off the brake pedal the vehicle stayed stationary. Webb then stayed by the cabin for about two minutes "just to make sure the brakes and everything had sorted itself out." 57.Webb left Phillips sitting in the cabin of the prime mover and went to the B trailer where Webb observed that the brakes were off and heard an air leak. He got underneath the back of the trailer and found a fitting that had not quite locked the air line in. Webb tightened the fitting and fixed the air leak. 58.Once he had stopped the air leaking from the suspension system, Webb moved back underneath the rear axle of the B trailer and watched the rear driver's side airbag inflate. Webb then climbed out from underneath the B trailer before re-positioning himself under the driver's side of the B trailer in front of the first axle to observe the front airbag on the driver's side to make sure it was unrolling properly. 59.Whilst in that position, he saw Phillips crouched down beside the B trailer with his hand on a valve attached on the side of the chassis rail. Webb then asked Phillips if he had moved the valve and Phillips "... indicated yes he had". Webb then asked Phillips to put the valve back to its normal running position. 60.Webb then looked around and saw that the rear axle airbags on the B trailer were overextended and that the middle axle airbags were starting to overextend. At that point, Webb saw the "first axle driver's side airbag unrolled, bounced the trailer and, and the vehicle started to roll forwards". 61.Webb then got himself out from underneath the B trailer. 62.The heavy combination rolled about 3 metres forward before coming to a standstill. 63.After Webb got out from underneath the B trailer, he observed that Phillips was trapped between the driver's door and the door sill of the prime mover with the door hard up against an adjacent steel light pole. 64.The Autopsy Report dated 20 April 2009 indicates that Phillips died as a consequence of traumatic asphyxia consistent with his entrapment between the driver's side door and the sill of the prime mover. 65.An analysis of femoral blood samples taken from Phillips during the course of the autopsy revealed the presence of delta-9-tetrahyrocannabinol less than 0.005mg/L, delta-9-THC acid 0.012mg/L and methylamphetamine 0.2mg/L. The traces of cannabinoids found in the blood samples are at levels which indicate that the cannabinoids are unlikely to have played any role in the subject incident. By contrast, the level of methylamphetamine is significant. A reading of 0.2mg/L is 4 times the upper level of the therapeutic range (0.05mg/L) and within the reported toxic range for methylamphetamine. 66.At the time of the subject incident, clause 64 of the Road Transport (General) Regulation 2005 (NSW) (the "Regulation") provided that in any period referred to in column 1 of the table below, a solo driver: (a)must not work for more than the work time mentioned in Column 2 of the table; and (b)must have the rest of that period off work, with at least the rest time mentioned in Column 3 of the table. Column 1 Column 2 Column 3 Column 4 Total period Maximum work time Minimum rest time Offence category In any period of... A driver must not work for more than... and must have the rest of that period off work, with at least... If in that period a driver has... the following category of offence is committed... 5½ hrs 5¼ hrs work time 15 continuous mins rest time > 5¼ hrs work time minor risk 8 hrs 7½ hrs work time 30 mins rest time, in blocks of 15 continuous mins > 7½ hrs work time minor risk 11 hrs 10 hrs work time 60 mins w/consol_reg/rtr2005333/s39.html'>rest time, in blocks of 15 continuous mins ≤ 10¾ hrs work time minor risk > 10¾ hrs http://www.austlii.edu.au/au/legis/nsw/consol_reg/rtr2005333/s39.html'>work time substantial risk 24 hrs 12 hrs work time ≤ 12 hrs ¾ work time minor risk > 12 ¾ but not > 13¼ hrs work time substantial risk > 13¼ but not > 13½ hrs work time severe risk > 13 ½hrs work time critical risk 7 continuous hrs stationary rest time < 7 but not < 6¼ continuous hrs stationary rest time minor risk < 6¼ but not < 5¾ continuous hrs stationary rest time substantial risk < 5¾ but not < 5½ continuous hrs stationary rest time severe risk < 5½ continuous hrs stationary rest time critical risk
67.A driver's "Work time" is defined in clause 57 to the Regulation as: (a) the time that the driver spends driving a regulated heavy vehicle, whether or not it is on a road or road related area, and (b) any other time that the driver spends doing tasks that are related to the operation of a regulated heavy vehicle, including (but not limited to) the following: (i) loading or unloading the vehicle, (ii) inspecting, servicing or repairing the vehicle, (iii) inspecting or attending to the load on the vehicle, (iv) attending to the passengers of a bus, (v) cleaning or refuelling the vehicle, (vi) performing marketing tasks in relation to the operation of the vehicle, (vii) helping with, or supervising, an activity mentioned in subparagraphs (i)-(vi), (viii) recording information, or completing a document, in accordance with this Part or otherwise, in relation to the operation of the vehicle. For the purposes of clause 57, "driving" includes: (a) being in the driver's seat of a regulated heavy vehicle while its engine is running, and (b) being in a regulated heavy vehicle for the purpose of instructing or supervising the driver of the vehicle. 68.A driver's "Rest Time" is defined for the purposes of clause 57 of the Regulation as "not work time". 69.Further, independent of clause 57 of the Regulation, the time taken by Phillips in the period between the commencement of driving duties at about 6.00 pm on 12 November 2008 and the time of the subject incident, about 12.48 pm, on 14 November 2008 was insufficient to achieve a proper level of fatigue management for a person, such as Phillips, who was involved in the driving and management of heavy combination vehicle. The level of impairment associated with sleep deprivation at the level associated with the journey times described above is comparable to that seen with alcohol intoxication exceeding a blood alcohol concentration of 0.05%. 70.It has been reported by Dr Judith Perl (a consultant pharmacologist), and Dr. Anup Desai (a sleep physician) that the combination of methylamphetamine and sleep deprivation described above would have played a causative role in the events leading up to Mr Phillips' death. The levels of sleep deprivation and methylamphetamine levels described are reported as giving rise to an additive effect on psychomotor performance at the time of the incident. This impairment would have included decreased alertness and vigilance, increased reaction times, decreased motor co-ordination or increased clumsiness, decreased ability to concentrate and impaired perception, judgement and decision-making. The Defendant's role in the subject incident The Defendant's work systems prior to the subject incident 71.Prior to the subject incident the defendant's workshop at Hexham routinely accepted requests to perform breakdown repairs on heavy vehicles. 72.For the purpose of providing a breakdown repair service, the defendant maintained a breakdown service vehicle at the Hexham workshop. 73.Prior to the subject incident, the defendant had no management systems in place for the purpose of ensuring that the breakdown service vehicle was properly stocked with the tools and equipment necessary for the provision of a heavy vehicle breakdown repair service including, but not limited to, a breakdown service van checklist. Rather, the defendant relied upon the training and experience of its employed mechanics rostered to provide its breakdown service, including Webb, to select the tools, equipment and parts necessary for each breakdown repair job. 74.On the day of the subject incident the breakdown service vehicle was not available for use and Webb was told to use a ute that was not fitted out as a breakdown service vehicle. 75.As a consequence, Webb was required to assemble all the tools, plant and equipment that he thought he might require from the tools, plant and equipment that was available to be taken away from the workshop on that morning. This included the selection of chocks for use at the repair site to prevent the subject heavy vehicle from rolling away. 76.Prior to the incident, mechanics working in the defendant's workshop at Hexham utilised both purpose-manufactured wheel chocks and blocks of timber to chock vehicles under repair. The use of wooden blocks as chocks was known to management. 77.When spoken to after the incident, Webb stated that, prior to departing from the workshop, he loaded the defendant's ute with his tools, some stands and some blocks of wood to use as wheel chocks. Webb stated that he looked around the workshop for purpose-manufactured chocks but none were available. Webb stated that the blocks of wood that he obtained at the workshop for use as chocks came from the tool store at the Hexham workshop and that he selected them from amongst other blocks of wood in the tool store because the blocks of wood were the only chocks available and in selecting the blocks of wood he chose the biggest ones available in the tool store. However, Webb also stated that he normally used "rubber triangle" chocks [i.e. purpose-manufactured wheel chocks] and that he only used wooden chocks if he could not find the "rubber triangle ones". 78.Further, prior to commencing work at the RTA Inspection Facility, both at the time of his initial assessment of the repair work that needed to be done and when he commenced the actual repairs [i.e. on returning from Hexham with the correct spare parts], Webb did not carry out a formal written risk identification and assessment process. 79.On 12 December 2008, Troy Lawrence, the Service Manager employed by the defendant at Hexham, produced to WorkCover Inspector Nathan Hamilton a document entitled "S.O.P.-24 Break Down in the Field" dated 1 February 2004, which is identified as a Suttons Group of Companies Occupational Health & Safety Safe Operating Procedure. Inspector Hamilton told Lawrence that Improvement Notice 269881, which was served on 14 November 2008, had been complied with. SOP 24 was described on production by Lawrence as the company's method for identification, assessment and control of risk in respect of break down servicing conducted in the field. Otherwise, when spoken to after the event, Lawrence and other managers employed by the defendant stated that the company relied upon the training, experience and skill of mechanics assigned to conduct field servicing to conduct risk assessments in accordance with their training. The defendant did not have in place a formal risk assessment process and did not provide its employees, including Webb, with any formal risk assessment documentation to be completed, for the purpose of identifying and assessing hazards and/or identifying and implementing appropriate controls. 80.Further, at the time of the subject incident the work practices adopted by the defendant with respect to the replacement of airbags in airbag suspension systems, including, but not limited to, the BPW airbag suspension system fitted to the B Trailer of the subject heavy combination vehicle, were not formally documented by the defendant. When spoken to after the incident, Duncan stated that, at the time of the subject incident, the defendant relied upon the service manuals issued by the various manufacturers and the trade training, experience and skills of its various employed mechanics to determine the work procedure to be applied. 81.At the time of the subject incident, the defendant had not undertaken a formal, documented hazard identification process with respect to the subject work practice, nor had the defendant undertaken a formal, documented risk assessment with respect to the risks associated with this work practice and in particular, with respect to the controls to be put in place to eliminate the risk of a vehicle rolling away during the repair process. 82.Further, to the extent that Webb required Phillips to operate the vehicle whilst Webb was carrying testing and repair work on the B-trailer, Webb did not provide Phillips with detailed instructions regarding the steps that Phillips was to perform. WorkCover Notices to the defendant 83.On 14 November 2008, pursuant to section 92 of the Act, Inspector Nathan Hamilton issued the defendant with an improvement notice, Notice No, 269881. The notice required the defendant to carry out a review of its systems and procedures for servicing vehicles outside of the workshop environment, to ensure persons are not placed at risk of injury. Changes in the defendant's work practices after the incident 84.The defendant undertook an investigation of the subject incident and produced a formal, written investigation report entitled "Gilbert and Roach Incident Investigation Report 25th November 2008: Incident 14th November 2008 RTA Inspection Station 12 Mile Creek Pacific Highway". The investigation team consisted of Mr Dennis Smith, Mr Troy Lawrence and Mr Marino Gomes. 85.The defendant's investigation concluded, relevantly, that: "5.1 Mr Webb was suitably qualified, trained and had the requisite experience for the task he undertook]; 5.2 Mr Webb followed all the road rules with regards the positioning of his vehicle; 5.3Mr Webb had the requisite PPE; 5.4Mr Webb followed all procedures documented in references 2.1 [Drivers Handbook Kenworth CAT: 8030 Feb 2006 covering the K104 Series Kenworth Trucks] and 2.2. [Operators Manual - Transpec Pty Ltd (wholly owned subsidiary of BPW covering the BPW Airbag Suspension System)] and strictly followed all the guidelines and manufacturers recommendations; 5.5... 5.6The truck driver did not follow Mr Webb's instructions; 5.7The truck driver did not follow the Kenworth Drivers Handbook "before you leave the Cab" page 84 Reference 2.1); 5.8The truck driver did not follow the implied requirement within the initial assessment instrument used by the RTA when awarding the truck driver his Licence, that is, the requirement to follow basic rules when leaving the Cab with the engine running;" The defendant's investigation report reaches no conclusions regarding the role, if any, played by the use of blocks of wood, as opposed to purpose manufactured wheel chocks, to chock the subject vehicle. The system of work that allowed the use of wooden chocks was still in place when Lawrence was interviewed on 13 May 2009. 86.After the incident, the defendant produced two new documents relating to the provision of its breakdown repair service: (1)a document entitled "Gilbert and Roach Hexham Breakdown Service Van Checklist" [Copyright 2009]; and (2)a document entitled "Gilbert and Roach Hexham Breakdown Risk Assessment Checklist" [Copyright 2009]. 87.Prior to the subject incident, (1)purpose-manufactured wheel chocks were stocked by the defendant for sale to members of the public; (2)purpose-manufactured wheel chocks were in use, together with blocks of timber of the type used by Webb in the course of the subject incident, in the defendant's workshop at Hexham; (3)the defendant's service manager at Hexham, Troy Lawrence, was aware that timber blocks, of the type used by Webb in the course of the subject incident, were being used to chock heavy vehicles; and (4)Lawrence was in a position to obtain and provide more purpose-manufactured chocks from the defendant's stock for use in the Hexham workshop. 88.Since the subject incident the defendant requires the breakdown service vehicle to carry four (4) purpose-manufactured, shaped wheel chocks for use in breakdown servicing situations such as that encountered at the RTA Inspection Facility on 14 November 2008. 89.The defendant now requires the equipment carried on the service van to be checked against the breakdown van "Checklist" when the vehicle is handed over from one mechanic to another and any equipment that requires replacement is replaced. The Checklist has to be completed and signed at handover. The defendant then collects and maintains the completed documents as part of the defendant's records. 90.Further, since the incident the defendant has introduced the "Breakdown Risk Assessment" which is a formal work written procedure. This procedure incorporates and requires the defendant's employees to undertake and document, at least in part, a formal hazard identification, a risk assessment and an identification of the risk controls nominated to be put in place as a consequence of the hazard identification and risk assessment. A copy of the completed "Gilbert and Roach Hexham Breakdown Risk Assessment Checklist" [Copyright 2009] is then maintained by the company as part of its records. Other Matters 91.The defendant has one prior conviction, in 1998, under the Occupational Health and Safety Act 1983. 92.The defendant co-operated with the WorkCover Authority of New South Wales during its investigation of this incident.
Relevant Principles 6In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 7Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process", starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 8Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000)115 ACrimR 104, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. 9In Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465, the Full Bench observed at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ... are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." 10Of relevance, particularly, is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: ... (2)Aggravating factors ... (d)the offender has a record of previous convictions, ... (g)the injury, emotional harm, loss or damage caused by the offence was substantial, ... (3)Mitigating factors ... (e) the offender does not have any record (or an significant record) of previous convictions, ... (g)the offender is unlikely to re-offend, ... (k)a plea of guilty by the offender (as provided by section 22) (l)the degree of pre-trial disclosure by the defence (as provided by section 22A), (m)assistance by the offender to law enforcement authorities (as provided by section 23) ...
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
Inspector Batty
Autopool Pty Ltd
[2005] HCA 25
(1993) 32 NSWLR 683
(2000) 49 NSWLR 610
(1989) 31 IR 207
(1999) 92 IR 8
(1999) 91 IR 66
(1996) 82 IR 384
(2001) 109 IR 209
(1999) 90 IR 464
(2005) 215 ALR 213
(2005) 228 CLR 357
(2005) 141 IR 465
(2003) 130 IR 364
(2000) 49 NSWLR 383
(2003) 123 IR 237
(2003) 123 IR 121
(1999) 95 IR 383
(2000) 99 IR 163
(2004) 60 NSWLR 168
(2000) 99 IR 29