Inspector Braddick v Connex Sydney Pty Ltd

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000 Rail Safety Act 2002

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Graincorp Operations Ltd v Inspector Mason (2006) 157 IR 103 Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 Inspector Jelley v Albright & Wilsons (Australia) Limited [2007] NSWIRComm 148 Maddaford v CSR and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104 Winchester (1992) 58 ACrimR 345 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Anor (2000) 95 IR 383 WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409 WorkCover Authority of New South Wales (Inspector Robert Mayell) v DJ Gleeson Pty Ltd [2006] NSWIRComm 363

Prosecutor: Mr M Cahill, of counsel Solicitors: DLA Phillips Fox LEGAL REPRESENTATIVES:

Defendant: Mr RM Goot SC Solcitors: Piper Alderman

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

1 Connex Sydney Pty Ltd has pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000 (the Act) . The offence arises out of an incident on 12 April 2005 at the monorail maintenance depot operated by the defendant when Frances Canova, an employee of the defendant, fell approximately 7.6 metres from a platform on which she had been walking after disembarking from the monorail. As a result of the fall Ms Canova suffered very serious injuries including several spinal fractures and a renal contusion. At the time of the incident Ms Canova was a trainee monorail operator who was completing a training shift and had returned to the depot at about 2.00am for a meal break. She was accompanied by two other trainees at the time. After disembarking from the monorail Ms Canova stepped onto the platform (known as the traverser platform), turned left and headed in a southerly direction walking past a grey generator box. A handrail on the right side of the platform led to an exit point located after the generator box. Ms Canova continued past the exit point until she reached the edge of the platform, falling 7.6 metres to the ground below. 2 At the southern edge of the platform, there was a railing protruding at right angles from the handrail on the western side extending for approximately half the width of the platform (which was 1,165mm wide). A sign with the letter "P" and an arrow pointing to the western end of the platform was affixed to the railing. Apart from the railing there was no other barrier in place to prevent persons from moving beyond or falling off the southern end of the platform. Nor did Ms Canova see the words "Stand Clear" which had been painted in yellow onto the base of the platform towards the southern end. 3 Ms Canova has stated that prior to the accident she had not been informed either about the risk of falling from the platform or the correct route to follow after disembarking from the monorail. It emerged from the evidence tendered during the proceedings that Ms Canova had not in fact completed the familiarisation course as part of her induction training. At the time other trainees were completing that component of the course Ms Canova had apparently gone on sick leave. When she returned she progressed directly to the driver/operator training component of the course. 4 The defendant, at the time of the offence was the operator and manager of the monorail and light rail system. In 2001 it had signed a contract with Metro Transport Sydney Pty Limited, the owner of the monorail and light rail systems, for the operation of both systems for a term of seven years commencing on 1 April 2001. The defendant employed the staff that operated both systems. At the time of the incident the defendant employed approximately 161 staff, 71 of whom were engaged in monorail operations. Currently it employs about 145 staff, 55 of whom are engaged in monorail operations. 5 The particulars of the offence under s 8(1) are set out in an amended application for order which are extracted below:

(1) The defendant failed to conduct an adequate risk assessment of the means of access to and egress from the platform; and

(2) The defendant failed to ensure that premises controlled by the employer where the employees work (and the means of access or exit from the premises), namely the traverser platform, were safe and without risks to health in that:

(a) It failed to ensure that there was an adequate barrier in place at the southern end of the traverser platform to prevent persons falling from the traverser platform,

(b) It failed to ensure that lighting on the traverser platform adequately illuminated the exit from the platform,

(c) It failed to ensure that the signage marking the exit from the traverser platform was adequate to identify the correct exit route from the traverser platform,

(d) It failed to ensure that there were adequate signs warning of the danger of persons falling from the traverser platform.

(3) The defendant failed to provide such information, instruction, training and supervision of its employees as was necessary to ensure the employees health and safety at work in that:

(a) It failed to inform the injured worker of the risk of falling from the southern end of the platform,

(b) It failed to inform the injured worker of the correct route to follow to exit the platform. 6 The prosecutor in submissions contends that the risk of falling from the traverser platform was foreseen by the defendant. The basis of this submission seems to be the existence of a report commissioned in 1988 which specifically identified the risk of falling from the platform. The report was prepared by a company, Riskex Pty Limited, for TNT Bulkships Limited which had constructed the Sydney monorail transport system and had a licence to operate the monorail system over its land from 1988. The business assets of TNT were purchased on 15 August 1998 by Metro, the company with whom the defendant contracted for the operation of the monorail and light rail systems in 2001. According to Gerard Boursin, a director of the defendant, TNT were planning to dispose of the Riskex report sometime in the mid to late 1990's. A one-time employee of TNT, Tony Busic, retained the document in his possession. He later gave the report to Glen Willenbrock the defendant's maintenance manager, sometime in 2003. Mr Willenbrock in turn did not bring the existence of the report to the attention of the other members of the defendant's management. It was not until Mr Willenbrock's employment was terminated in July 2006 and a review of the material in his office undertaken that the report was discovered. 7 In the report an observation is made in relation to the southern end of the traverser platform (where Ms Canova fell) as follows:

At present there is inadequate protection from falling at the southern end of the through rail platform. Provide appropriate shaped guard rail which will allow the free passage of the train. 8 According to the prosecutor, from at least 2003 when the report was handed to Mr Willenbrock it was in the defendant's possession, through its maintenance manager. The position of maintenance manager, occupied by Mr Willenbrock was a senior management position. It may therefore be inferred from this that the defendant through its maintenance manager had actual knowledge of the report, or at the very least should have had actual knowledge and therefore knew about the subject risk. 9 I do not agree that the facts justify such an inference being drawn. The reality is that the defendant's senior managers (with the exception of Mr Willenbrock) did not know of the existence of the report. Nor can it be ascertained from the state of the evidence whether Mr Willenbrock was aware of the contents of the report. It cannot therefore be reasonably concluded from the circumstances pertaining to the Riskex report that the defendant had actual knowledge of the risk of falling from the platform or even that it should have known. In any event as Mr Boursin points out it was not reasonably practicable for the defendant to have erected a barrier or guard rail across the entire width of the traverser platform at its southern end because such a barrier would have obstructed the monorail's passage along the main monorail beam. Nevertheless, in my view the risk of falling from the platform was both obvious and reasonably foreseeable by reference to other factors. First Ms Canova, prior to the incident, had never been informed of the correct route to follow after disembarking from the monorail. Secondly, at the southern end of the platform there was a gap in excess of 550 millimetres through which persons could fall from the platform a distance of some 7.6 metres to the ground below. Thirdly, there was no signage, in the absence of a barrier or guard rail, warning of the dangers of falling from the platform or identifying the correct exit route from the platform. The words "Stand Clear" painted onto the base of the platform were not seen by Ms Canova no doubt because it was dark (being 2.00am) and the lighting was inadequate. Given these acts and omissions of the defendant the risk of falling was both obvious and reasonably foreseeable. In accordance with the authorities this places the offence in a serious category: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [81] - [82]. 10 General deterrence is also an important consideration in the circumstances. The risk of falling is an all too common feature of many occupational health and safety prosecutions in this jurisdiction. Many of those prosecutions have involved serious injuries (and sometimes fatalities) which in many cases could have been avoided by the implementation of relatively straightforward protective measures. As in the present circumstances the evidence which emerges from those prosecutions is that the risk of falling is often obvious and foreseeable. These matters highlight once again the need to alert employers who operate in industries where workers work at heights to the importance of ensuring the implementation of safe work practices, of safe training regimes and of conducting proper risk assessments in relation to the searching out and detection of any unsafe plant, hazards, practices or operations which might or could expose workers to the risk of falling: see WorkCover Authority of New South Wales (Inspector Robert Mayell) v DJ Gleeson Pty Ltd [2006] NSWIRComm 363 at [27], [28]. 11 The defendant contends that the Court should find in the circumstances that the risk of re-offending is low to non-existent. According to the defendant its comprehensive pre-incident safety measures in combination with its post-incident measures and the fact that it has no prior convictions justify a finding that it is unlikely to re-offend. 12 The defendant commissioned a risk assessment in May 2005 from Warwick Horsely. Mr Horsely assessed the level of risk associated with falling off the end of the traverser platform following the implementation after the incident by the defendant of WorkCover recommendations. According to Mr Horsely the implementation of the recommendations reduced the risk of persons falling off the traverser platform by 80 percent. The WorkCover recommendation included new signage, a fence barrier, luminescent paint and updated trainer instruction on depot awareness. From my observations of the photographs in the report, which are meant to illustrate these implemented recommendations, it would appear that the added fence barrier does not restrict the access of personnel to the southern edge of the platform. The risk of falling off the platform has therefore at best been minimised, perhaps by the implementation of the other recommendations, but certainly not eliminated. Nevertheless the other measures were no doubt thought to be highly effective in Mr Horsely's view so as to warrant the rating of an 80 percent reduction of the risk. 13 In September 2006, the defendant at its own initiative took action to limit its employees from accessing the traverser platform. The procedure for boarding and disembarking the monorail was changed so that operational staff no longer needed to access the traverser platform. Instead, monorails are now brought across to the loading bay near the demountable offices in the depot. The path to this loading bay, according to Mr Boursin, is clearly marked and operational staff are required to obtain authorisation from the relevant maintenance technicians before boarding or disembarking. These measures have therefore eliminated the risk of operational staff falling from the traverser platform. The only employees who are now permitted to access that platform are the maintenance staff. These measures in turn ensure that the likelihood of the defendant committing offences associated with the failing to take measures to ensure that staff do not fall from the traverser platform has been significantly reduced. This does not mean however that the principle of specific deterrence has no application to the present circumstances. The defendant remains in operation with a staff of approximately 145, a sizeable proportion of whom are engaged in monorail operations. Risks to the safety of its employees or other persons may therefore arise. So long as the defendant remains in operation with a sizable workforce, the opportunity exists to commit similar offences in the future under the occupational health and safety legislation: see Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 at [16] - [17]; WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409 at [33] - [35]; Inspector Jelley v Albright & Wilsons (Australia) Limited [2007] NSWIRComm 148 at [17]. Accordingly, the principle is relevant in the circumstances and will be applied. 14 Another factor which heightens the objective seriousness of the offence is the availability of many simple measures that would have obviated, at least, the risk of falling from the platform had they been in place prior to the offence. Some of these measures, including the implementation of the WorkCover recommendations, have already been adverted to. The evidence reveals that the defendant, following the offence, implemented a number of impressive measures to ensure that its operations staff could board and disembark the monorail safely without the risk of injury. Many of these measures have been detailed by Mr Boursin in his affidavit sworn on 13 February, 2007. Other measures detailed by Mr Boursin, taken by the defendant after the incident, have sought to address broader concerns about safety generally. These include external and internal safety audits undertaken to identify potential gaps in its safety systems and processes in the management of rail safety; a review of the defendant's Training Manual; and, the creation of a new safety manual entitled The Rail Safety and Occupational Health and Safety Management Manual which aims to ensure compliance with both the Rail Safety Act 2002 and the occupational health and safety legislation. All management employees were briefed on the contents of the manual in May and June 2006 and training courses were instituted for the managers in July 2006. The defendant's pre-incident approach to training was also restructured. Now, a single training manager is responsible for all training, and trainee attendance records ensure attendees do not miss training modules. It is now a requirement of the new training regime that trainees complete classroom and theoretical training modules before they commence on-the-job training modules. Such a requirement will ensure that, unlike Ms Canova, staff will not miss any component of their theoretical training before commencing their practical training. In 2006 the defendant expended approximately $250,000 on safety training. These improvements in the defendant's safety systems have, according to Mr Boursin, resulted in a dramatic fall in the number of days lost due to injuries. In addition, since the improvements, no employees have suffered serious safety-related injuries. 15 These measures serve both to highlight the objective seriousness of the offence, in the sense that many, if not all of those measures, could have been implemented at any time before the offence, as well as subjective considerations relevant to the mitigation of that objective seriousness. This latter consideration emphasises the impressive and successful steps taken by the defendant following the offence to ensure as far as possible that its staff are no longer exposed to risks of injury at the workplace. It will be taken into account on penalty in the defendant's favour. 16 The very serious injuries suffered by Ms Canova manifest the degree of seriousness of the risk to safety. This calls for the application of another sentencing principle which emphasises that while the fact of injury alone does not dictate the seriousness of an offence, it may nevertheless indicate that the breach of the Act had every prospect of serious consequences: Maddaford v CSR and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] [18] [23]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Anor (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. Ms Canova, because of a combination of a number of failings directly attributable to the defendant, fell some 7.6 metres from the platform to the ground below. In these circumstances it was inevitable that Ms Canova would suffer very serious injuries. 17 Against these objective features, and in the defendant's favour, it had in place a very comprehensive safety system prior to the offence. This has been acknowledged by the prosecutor in submissions, although with the qualification that the system had a number of deficiencies. One of these deficiencies was the failure of the defendant to ensure that Ms Canova received her "familiarisation tour" as part of the training programme for trainee monorail apprentices. This, in my view, was a serious oversight on the defendant's part. The date of the incident represented Ms Canova's first visit to the traverser platform. It also emerged from the evidence that she was allowed to proceed towards the exit area without proper supervision. 18 Despite deficiencies in the safety system the system itself was a comprehensive one and otherwise appeared to operate on a reasonably efficient level. Mr Boursin has set out in detail in his affidavit a number of features of the defendant's system in place prior to the offence. Monthly reports for example were generated and delivered to the defendant's board of management. These reports included details on safety developments. The defendant had also received accreditation from the Department of Transport as a railway owner and operator to conduct rail activities. In order to gain the accreditation the defendant was required to satisfy the relevant authority that it had the competency and capacity to implement a safety management system which could effectively control the risks associated with carrying out its monorail operations. The defendant documented its safety management system in a number of manuals including policy, operations and training and work instructions manuals. Prior to the offence the defendant was also subjected to regular audits and compliance inspections in respect of both the monorail and light rail systems. Hazard identification and assessment reviews were also conducted by the defendant. These reviews, Mr Boursin concedes, quite candidly, did not specifically identify the risk of falling from the traverser platform but did identify the hazards of slipping, tripping and falling generally in the areas around the monorail. Prior to the incident the defendant also had in place an occupational health and safety committee for both the monorail and light rail operations. The Committee's primary purpose was to identify work-related risks to safety and consult with employees on safety matters, as well as make recommendations to management on occupational health and safety matters. Internal occupational health and safety audits were also regularly conducted by the defendant. 19 The defendant has no prior convictions which means it faces a maximum penalty of $550,000. 20 The defendant entered a plea of guilty to the offence. The prosecutor concedes that the plea was entered at the earliest opportunity. The defendant is therefore entitled to a discount of the sentence in accordance with the principles in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104. I consider the appropriate discount for the utilitarian value of the plea is 25 per cent. 21 The defendant is also entitled, as a discrete matter from utilitarian considerations, to leniency on the basis that its plea of guilty is an indication of contrition: Winchester (1992) 58 ACrimR 345 at 350. 22 The defendant is also entitled to leniency on the basis that it has no prior convictions. The absence of prior convictions is also indicative of its reputation for good industrial citizenship. This latter point has been conceded by the prosecutor as a subjective feature which the Court may take into account as mitigating the otherwise objective seriousness of the offence; see Graincorp Operations Ltd v Inspector Mason (2006) 157 IR 103 at [38], [39]. 23 The defendant also co-operated with WorkCover during that Authority's investigation into the incident, the subject of the offence. It has also provided substantial and ongoing assistance to Ms Canova. Substantial financial assistance was provided to Ms Canova for example by the defendant during her period of rehabilitation to compensate for the shortfall between Ms Canova's workers compensation payments and what she would have earned if she had been fit for full duties. The defendant also provided funds to Ms Canova to enable her to catch taxis, attend treatments and buy groceries. It also facilitated and assisted Ms Canova to return to work and to ensure that Ms Canova's work roster has been sufficiently flexible to accommodate the need for her to continue certain rehabilitation treatments. 24 In determining penalty against the defendant, I have taken into account the objective seriousness of the offence, the personal factors described above, and the absence of prior convictions. The defendant made no submissions as to its capacity to pay a fine under s 6 of the Fines Act 1996. I therefore proceed upon the basis that the defendant has the financial capacity to pay the fine which will be imposed. The objective and subjective factors, and the absence of prior convictions, have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A. Orders

25 In Matter No IRC 2541 of 2006, I make the following orders:

(1) The defendant Connex Sydney Pty Ltd is convicted of the offence.

(2) The defendant is fined $90,000 with a moiety to the prosecutor.

(3) The defendant is to pay the costs of the prosecution in the amount of $19,000.

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.