Inspector Brian Dell v Jeffrey Fitzpatrick

DEFENDANT Mr J Miller of counsel

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 1907 of 2002 INSPECTOR BRIAN DELL v JEFFREY WARREN FITZPATRICK

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSW IRComm 69 1 The defendant, Jeffrey Warren Fitzpatrick, was a director of Suemart Logging Pty Ltd ("Suemart"), a company in the business of harvesting and supplying logs to a sawmill operated by Wyoming Mill Pty Ltd at Niangala in New South Wales. On 2 May 2000 the defendant was operating plant known as a log forwarder in the log yard of the sawmill. The log forwarder, which was a heavy, tractor-like, four wheel drive, articulated vehicle, had a load of logs estimated to have a mass of 16 tonnes. The defendant had commenced to move the log forwarder with the intention of travelling 30 metres to a log deck where the logs were to be unloaded. As the defendant did so, Wayne Stanley Davison, an assistant manager employed by Wyoming Mill, was struck by the log forwarder causing him fatal injuries.

2 Mr Fitzpatrick was prosecuted in relation to the incident on 2 May 2000 under s 50(1) of the Occupational Health and Safety Act 1983 in that it was alleged: Suemart Logging Pty Ltd [CAN: 083 943 346], being an employer, on 2 May 2000, at Niangala Road Niangala, in the State of New South Wales, failed to ensure that persons not in its employment, and in particular, Wayne Stanley Davison, were not exposed to risks to their health or safety arising from the conduct of the corporation's undertaking, while they were at the corporation's place of work, contrary to section 16(1) of the Occupational Health and Safety Act 1983. The defendant Jeffrey Warren Fitzpatrick, date of birth: 3 August 1948, was a director of the said corporation and is deemed to have contravened section 16(1) of the Occupational Health and Safety Act 1983, pursuant to section 50(1) of the Occupational Health and Safety Act 1983. The prosecutor was Inspector Brian Dell of the WorkCover Authority of New South Wales.

3 The particulars of the charge alleged that Suemart:

· failed to provide or maintain a safe system of work for driving the log forwarder when the driver was seated in a position with the load in front of the driver; · failed to provide or maintain a safe system of work for the transportation and unloading of logs in the log yard; · failed to ensure that adequate warning devices were fitted to the log forwarder to warn persons in the near vicinity that the log forwarder was moving, or about to move, with the load in front of the driver; · failed to provide such adequate instructions and information as were necessary to ensure the health and safety of persons not in its employment.

5 An agreed statement of facts was tendered in the proceedings. The agreed statement revealed a woeful disregard for safety at the sawmill in relation to the operation of the log forwarder: no audible alarm or other warning devices to warn persons that the log forwarder was moving or about to move; no spotters or guides in place to ensure the log forwarder could move about the yard safely; no risk assessment had been carried out; no information or instructions was provided to persons in the sawmill by Suemart or the defendant regarding the risks associated with the log forwarder; the vision of the driver of the log forwarder was obscured by the load of logs.

6 Also tendered in the proceedings was a factual inspection report into the incident by Inspector Dell dated 3 May 2000 and a bundle of colour photographs of the incident scene. There was also evidence that the defendant had no prior convictions under the Act.

7 Mr Fitzpatrick gave evidence in the proceedings. His company, Suemart has gone into bankruptcy. As a consequence Mr Fitzpatrick was forced to sell his house and his motor vehicle. He lives in rental accommodation and has a disability that limits his movement and prevents him from lifting anything. Since 2002 he has received a disability support pension of $299.10 per fortnight and with his partner has a combined annual income of $24,673.84. The Verdict

8 After reviewing the agreed facts and in light of the charge and the particulars thereof, I am satisfied that the offence has been proven. The pleas of guilty by the defendant was properly made and I enter a verdict accordingly. Consideration

9 The defendant concedes that the nature and quality of the offence was serious and, indeed, it was. The seriousness of the offence is reflected in the fact that the maximum penalty for a breach of s 50(1) by an individual is $55,000. Apart from the fact that the defendant "believed" that employees of the mill had been instructed "generally" to keep out of the log yard and to keep a look out for machinery operating in the log yard, there was a complete absence of any manifestation of a regard for the health and safety of workers. I have already referred to the lack of safety devices on the log forwarder and the fact that when the log forwarder was being driven with the load in front of the driver, the driver's view was obstructed by 16 tonnes of logs.

10 It was reasonably foreseeable that in the absence of any warning devices of the log forwarder's movement and in the absence of a flagman or spotter, that there was a risk of the log forwarder colliding with a person in the yard, especially given that the driver's line of sight was obscured by the load of logs. Simple and straightforward steps were available to avoid the risk to safety as demonstrated by the fact that after the accident alarm devices were fitted to the log forwarder and spotters were strategically located in the log yard to guide the driver and warn others of the approach of the log forwarder.

11 I should also have regard to the consequences of the offence. In this case it was a fatality and whilst such a consequence does not dictate the amount of any penalty it is a measure of the gravity of the breach: Inspector Tyler v Sydney Electricity (1993) 47 IR 1 at 5.

12 As to the question of deterrence, general deterrence may be pertinent here but specific deterrence is not. Suemart has been wound up and de-registered and there is considerable doubt in my mind that Mr Fitzpatrick will ever be capable of working again.

13 As to the subjective factors, the defendant is entitled to the benefit of a discount on his sentence by virtue of the early guilty plea. The defendant has not previously come to the notice of the authorities and he has cooperated with the prosecutor. He took steps to ensure the accident did not happen again. The defendant is 54 years of age, in poor health and unable to work. He is a person of very limited financial means.

14 In WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 84 at pars [83] to [85] Walton J, Vice President reviewed the various authorities regarding the financial means of a defendant: 83 The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at [50]): It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201.

84 This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at [81] - [82]): ... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at p339); WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at p333; and Profab Industries (49 NSWLR at p714, 100 IR at p76). However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp209 - 210, Wright J, President observed : "... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ... ...

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ..." 85 I would reiterate what the Court stated in WorkCover Authority of NSW (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 (at 476): Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see Rahme (1989) 43 A Crim R 81 at 86 (See also Inspector William Hopkins v Michael Wheritt trading as M J Wherritt Concrete Pumping Services [2002] NSWIRComm16 at [59] - [60]).

86 Having regard to the aforementioned authorities regarding the relevance of the financial means of a defendant, I shall significantly reduce the amount of fine which would have otherwise been ordered to be paid by the defendant due to the defendant's limited means and impecuniosity.

15 A large fine would have a significantly adverse impact on the defendant. Whilst the offence in respect of which the defendant has pleaded guilty is a serious one, I propose to take a similar course to that of Walton J and significantly reduce the fine in light of the defendant's limited means and impecuniosity. I consider that the defendant should be fined an amount of $3,000.

16 Mr G M Galluzzo of counsel for the prosecutor sought costs and a moiety of the fine. Whilst the defendant made no submissions regarding costs, I am concerned that it may have been overlooked by the defendant as an issue. I propose to reserve this question for 28 days from the date of this judgment to enable the defendant to consider his position and to discuss the matter with the prosecutor. If costs are agreed the prosecutor shall advise my associate and orders will be made in Chambers. If there is no agreement the matter will be re-listed for hearing on application by either party on reasonable notice.

17 The Court makes the following orders: 1. The defendant is found guilty of the charge brought against him in these proceedings and is convicted accordingly. 2. The defendant is fined the sum of $3,000 with a moiety to the WorkCover Authority of New South Wales. 3. Costs are reserved in accordance with this judgment on that matter. ________________________________

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