Inspector Brian Dell v Wyoming Mill Pty Ltd / Inspector Brian Dell v Braith Murray Vidler

PROSECUTOR Mr G M Galluzzo of counsel Solicitor: Ms R Panagoda LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Boland J Thursday 14 August, 2003 Matter No IRC 1906 of 2002

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

Prosecution under section 50(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 267 1 This case arises out of an alleged breach of section 15(1) of the Occupational Health and Safety Act 1983 by both Braith Murray Vidler ("the personal defendant") and Wyoming Mill Pty Ltd (ACN 089 446 186) ("the corporate defendant") resulting in the death of Wayne Stanley Davison. At all relevant times Mr Vidler was a director of the corporate defendant and had influence over its daily operations, particularly in the area of occupational health and safety. By virtue of section 50(1), the prosecutor contended that Mr Vidler contravened section 15(1) when he failed to ensure the health, safety and welfare at work of all the corporate defendant's employees, in particular the deceased.

2 Section 15(1) of the Act provides: 15. Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

3 The personal defendant was prosecuted under s 15(1) and s 50(1) of the Act. Section 50(1) provides: 50. Offences by corporations (1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

4 On 2 May 2000, Jeffrey Warren Fitzpatrick, the director of Suemart Logging Pty Ltd, was carrying on the business of harvesting and supplying logs to a sawmill owned and operated by the corporate defendant at Niangala in New South Wales. In carrying out his work at the sawmill Mr Fitzpatrick was using a log forwarder, which was a heavy, tractor-like, four wheel drive, articulated vehicle. The log forwarder was carrying a load of logs estimated to have a mass of 16 tonnes. Mr Fitzpatrick 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. At the same time Mr Davison and James Tattam, both employees of the corporate defendant, were proceeding on foot across the log yard whist carrying out an inspection. It was at this time that the deceased was struck by the log forwarder resulting in fatal injuries.

5 On 5 April 2002, having completed his investigation into the incident, Inspector Brian Dell filed applications for orders under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 seeking that the defendants appear before the Commission to answer the charges against them.

6 The particulars of the charge against Braith Murray Vidler were as follows: (a) At all material times, Wyoming Mill Pty Ltd, employed a number of persons, including Wayne Stanley Davison. (b) At all material times, Wyoming Mill Pty Ltd, carried on the business of sawmill operations at Niangala Road, Niangala (the site). (c) At all material times, Wyoming Mill Pty Ltd engaged the services of Suemart Logging Pty Ltd to harvest and supply logs to the sawmill operated by Wyoming Mill Pty Ltd. (d) At all material times, Suemart Logging Pty Ltd operated a log forwarder ("the log forwarder"). (e) At all material times, Wyoming Mill Pty Ltd failed to provide and maintain a safe system of work for the manoeuvring of a log forwarder at the said site. (f) At all material times, Wyoming Mill Pty Ltd failed to provide and maintain a safe system of work for the unloading of logs at the said site. (g) At all material times, Wyoming Mill Pty Ltd failed to provide or maintain a safe system of work to ensure employees were not struck by moving plant at its place of work. (h) At all material times, Wyoming Mill Pty Ltd failed to provide such adequate instructions and information as were necessary to ensure the health and safety of employees at its place of work. (j) At all material times, Wyoming Mill Pty Ltd failed to provide such adequate training as was necessary to ensure the health and safety of employees at its place of work. (k) At all material times, Wyoming Mill Pty Ltd failed to provide adequate supervision as was necessary to ensure the health and safety of its employees at its place of work. (l) As a result of the said failures Wayne Stanley Davison was placed at risk of injury. (m) At all material times, the defendant, Braith Murray Vidler, date of birth: 22 June 1960, was a director of Wyoming Mill Pty Ltd and was present at the site. (n) The defendant, Braith Murray Vidler, being a director of Wyoming Mill Pty Ltd is deemed to have contravened section 15(1) of the Occupational Health and Safety Act 1983, pursuant to section 50(1) of the said Act.

7 The particulars of the charge against Wyoming Mill Pty Limited were as follows: (a) The Defendant, at all material times, employed a number of persons, including Wayne Stanley Davison. (b) The defendant, at all material times, carried on the business of sawmill operations at Niangala Road, near Niangala (the site). (c) The Defendant failed to provide or maintain a safe system of work for the manoeuvring of a log forwarder at the said site. (d) The defendant failed to provide or maintain a safe system of work for the unloading of logs at the said site. (e) The defendant failed to provide or maintain a safe system of work to ensure employees were not struck by moving plant at its place of work. (f) The defendant failed to provide such adequate instructions and information as were necessary to ensure the health and safety of employees at its place of work. (g) The defendant failed to provide such adequate training as was necessary to ensure the health and safety of employees at its place of work. (h) The defendant failed to provide such adequate supervision as was necessary to ensure the health and safety of its employees at its place of work.

8 The orders sought by the informant were made and entered on 16 April 2002 and the defendants were ordered to appear before the Court on 28 May 2002. There was no appearance for either defendant. The prosecutor sought adjournments on the basis that the registered office of the corporate defendant had changed and the summons would need to be served at the new address and because Mr Vidler was not at his last known address. In May 2002 a licensed commercial agent engaged by the WorkCover Authority of New South Wales had a telephone conversation with Mr Vidler who indicated to the agent that his address for service was 9/19 Doughboy Parade, Hemmant, Queensland 4178. A company search revealed that the registered office of the corporate defendant had changed to the same address as that of the personal defendant.

9 Summonses were attempted to be served on Mr Vidler on 27 June 2002 and on the corporate defendant on 20 August 2002 at the Hemmant address without success. The agent was advised by the manager of the townhouse complex in which the address was located that Mr Vidler was no longer a resident having re-located some twelve months earlier with no forwarding address. Further extensive inquiries were pursued by WorkCover in relation to Mr Vidler but he was unable to be located.

10 In October 2002, by notice of motion, the prosecutor applied for leave to be granted to the prosecutor for orders for substituted service in relation to the two defendants pursuant to r 110 of the Industrial Relations Commission Rules 1996. Having satisfied myself that the prosecutor had made extensive inquiries as to the whereabouts of Mr Vidler and having regard to the fact that personal service could not be effected at the last known address of the corporate defendant's registered office, I made orders granting leave to the prosecutor for substituted service of the summonses and affidavits in support by post or public advertisement.

11 In proceedings before the Court on 28 April 2003 an affidavit of Ms Ramya Panagoda, a solicitor employed by WorkCover, was read. Ms Panagoda deposed that legal notices had been placed in various Queensland newspapers in December 2002, January, February and April 2003 giving notice to the defendants that they were required to appear before the Court on 28 April 2003 and that the charges against them would be dealt with in their absence if they did not attend. There was no appearance by either defendant on that day. In the circumstances, I am satisfied that every reasonable effort has been made by the prosecutor to serve on the defendants the orders made by this Court on 16 April, 2002. Accordingly, the matters proceeded ex parte.

12 In these proceedings I have had the benefit of considering: (i) An instrument appointing Brian Patrick Dell as an inspector with the WorkCover Authority; (ii) A statement of prior convictions confirming that Braith Murray Vidler and Wyoming Mill Pty Limited are not known to the WorkCover Authority; (iii) A decision of this Court in the matter of Inspector Brian Dell v Jeffrey Fitzpatrick [2003] NSWIRComm 69; (iv) A record of interview with Jeffrey Warren Fitzpatrick; (v) A folder containing a statement of Inspector Brian Dell, a factual inspection report completed by Inspector Brian Dell, prohibition notices issued by Inspector Brian Dell on the corporate defendant, a harvesting agreement made between Wyoming Mill Pty Ltd and Suemart Logging Pty Ltd, a COPS event sheet, an accident report completed by James Tattam, a record of interview with Mr Vidler and a further statement of Inspector Brian Dell; (vi) Eight colour photographs showing the mill and log forwarder; (vii) A folder containing affidavits of David William Thompson, John Thomas Inness, Sedrick John Ansell and Peter Mikulasev annexing their respective records of interview; (viii) A final interview statement of Jeffrey Warren Fitzpatrick; (ix) A company extract from ASIC records relating to Wyoming Mill Pty Limited (ACN 089 446 186); (x) The prosecutor's submissions on sentence.

13 Inspector Dell gave oral evidence. His evidence went to the following matters: · His investigation into the incident leading to Mr Davison's death on 2 May 2000 including the conduct of interviews with employees of the corporate defendant and an interview with Mr Vidler on 7 August 2000 in the company of Inspector Ian Batty.

· A record of interview with Mr Jeffrey Fitzpatrick on 22 May 2000.

14 I have had regard to the transcript of interviews with relevant persons conducted by Inspectors Dell and Batty. Relevant extracts from those interviews are as follows: Interview with Braith Murray Vidler

Q244: Alright, now you say you had no systems of work as such for the log forwarders' movements in the yard, it was pretty much relied upon…? A: Well he doesn't move in the - as such around the mill - the log yard is over there for the logs, that's it.

Q245: The systems of work for operation within that log yard concerning the forwarder were primarily left to his discretion? A: Yeah he just noses in, noses unloads nosed in.

Q259: Now the condition of the machine, this is SueMart's machine, the log forwarder, was it discussed with you before they started work at your premises? A: It's condition - if it was roadworthy and safe?

Q260: Yeah the general condition of it? A: No they looked fine to me, they - I didn't discuss any of that with him but all his machinery looked in good enough order to me, yeah

Q286: Now in relation to induction training, was… - what induction training was given, if any, to Mr Fitzpatrick before he started? A: Well all we did, well the mill was in early stages there, we just showed him virtually where the toilets were, he wasn't to come in to the mill anyway. I showed him all - he knows all the yellow lines, because the mill is virtually under construction the first time he came so, induction was really in its infancy and we were actually putting all that together but his job wasn't in the mill. Our main work with Marty was his area which was the forest and the log yard, getting that right to suit his manner of operation. But as far as his induction compared to the mill workers is concerned, it is totally different.

Q287: So in a sense all his induction consisted of was going for a walk out in the forest with you to have a look at…? A: …well we assessed where we were going to start foresting and where he was happy to start milling, we - can't just say "over there see you later" you know. And then it was the construction of the log yard.

Q288: And did you make Fitzpatrick aware that there could…, potentially there could be other people working in or about the log yard as he was coming in or out of it? A: No it was a restricted area, we put our signs up and we put our hard hat signs up and - he knew from day one that was his area.

Q289: So you didn't make him aware that there could be other people in there? A: No there shouldn't be anyone in there, no-one should be in there, it is restricted.

Q290: Restricted to whom? A: Him, it is his area. It is his domain. Him and the forklift.

Q291: I understand that from time to time, people do go in that area to inspect logs and to measure logs and this type of thing, including the directors of the company? A: That would be - oh if they have got hard hats and they were in a group, that would be very seldom but that is not really the norm.

Q292: It is not the norm but it does happen from time to time? A: Yeah, if they have got - it is restricted to helmet area… you have got to get a helmet on and it is normally a group for a specific reason otherwise no one goes in there, I keep t as restricted as I can. There is no need for anyone to go there.

Q293: So you never told him that there could be - there potentially could be persons working in that yard. A: No. Well no not to that exact words, no.

Q294: Now you say sometimes people may go in there for one reason or another, whether they be in a group or whether it is some of your colleagues measuring logs or whatever the case may be. What system of work is in place for people entering the yard… do you have something in place for that circumstance? A: No, they must have helmets to go into that area, and they must - and usually management will go in there for a reason but it is not really done, well it might be done at lunchtime or smoko when no-one is around or of an afternoon or - it is not really an area where anyone goes, it is just pretty seldom that we go in there, but they must have a helmet to go in there and there must be a reason."

"Q345: What induction book? A: Oh it is just our safety book, they get a copy of that - you can bet your arse no-one reads it. Q346: What was that? A: You can bet none of them reads it

Q347: Alright? A: I don't sit down and quiz them on it, like I say, they take it home of a night but you would be flat out to read it. David William Thompson an employee of the corporate defendant :

Q65: As part of your normal duties, are you required at any time to go to the log area into the yard? A: Yes, at certain times I may have to go to the log area to run a tape over logs to see what diameter they are coming in at, so I can tell the forwarder operator or the processor operator to make sure the log sizes aren't getting any bigger than they are.

Q69: All right. So prior to the 2nd of May you had never been instructed that you weren't to go into that area? A: No

Q139: Besides being trained on the perfect rounder machine, what other training were you given, any? A: No

Q145: Now you say the training (the perfect rounder machine training) didn't identify any other areas around the mill, any exclusion areas, no go areas or things like that? A: No."

John Thomas Inness an employee of the corporate defendant:

"Q77: Were you ever - when you first joined the organisation, were you ever alerted to the dangers associated with working in and around moving machinery? A: No

Q79: Were you ever told that you weren't to go in to the log yard? A: Not that I can recollect, but after the accident yes. No-one was allowed in the log yard but I can't remember anyone ever saying don't go in there. Well actually I used to go in there because if they had trouble loading something I used to go and give them a hand - you know - by hand, you know putting them on forks or something so…

Sedrick John Ansell an employee of the corporate defendant :

Q97: Okay. The log yard itself, is there any signs up there that say you are not to go in to the area. Or were there any signs there before the accident to say that you can't go in to this area? A: Oh I still don't think there is any sign there saying that you can't…

Q98: …so that don't have any signs there now either? A: No, it is just - everyone just… when the Wolfie said just don't go in there while the machinery's in there.

Q215: Now if I was to drive up to that premises, what is stopping me driving my car into the log loading area, anything? A: No

Q218: So anybody could drive up there, park in the log yard, get out and wander about - potentially - before somebody would see them? A: Just about, yeah. Especially driving down the road, I think people could see you.

Q224: Yes, is there always someone at the office, or in the office? A: Oh not all the time, no.

Q225: Okay, so sometimes people could come there and there would be no-one in the office so they would have to walk down to the mill area to find someone? A: Yeah - I think it is a bit of a silly idea myself."

Peter Mikulasev an employee of the corporate defendant :

"Q38: Prior to the 2nd of the 5th 2000, had you ever been instructed not to go in to that area? A: Not that I can recall.

Q39: Have you ever seen other persons in that area? A: I have seen - I have seen people walking around there, yeah.

Q40: Who have you seen walking around there? A: I think just workers I think, and I think visitors that were coming in.

Q67: Around the log area, you were informed - prior to the accident, were you informed that you weren't allowed to go into that area? A: Not that I can recall.

Q78: Were you informed of any safety procedures that you were required to follow around the mill? A: No I don't think so. I don't think so, no. I can't remember.

Q84: Prior to the accident on the 2nd of May, did you observe anything at the mill which indicated to you that the loading and log areas were exclusion zones or no go areas? A: What like signs or anything?

Q85: Yes? A: No there was none.

Q102: How would you describe the manner in which the work in general was carried out at the mill prior to the accident, in terms of safe work practices? A: Hectic. Panicky. There was a rush I think to get production up and running - to get some sort of production. It sort of - you know, there was a lot of things that I think should have been fixed - well maybe not so much before the mill had started to cut timber, but it should have been done at least in the early stages. Yeah it was pretty hectic, you know - once they started getting the timber out there was just this thing about getting the timber out, get the production up.

Q180: Now is that to say that prior to that fence being put there that that log yard was used as a general thoroughfare? A: Yeah - yeah.

Q181: People could just walk in there higgley-piggley? A: Yeah.

15 In the absence of the defendants the evidence brought by the Prosecutor was uncontested. It may be noted that in the interview with Mr Vidler he indicated that he was a director and shareholder of the Corporate defendant.

Consideration 16 The elements of the offence under s 15(1) which the prosecutor must prove are as follows: (a) the defendant was an employer for the purposes of the Occupational Health and Safety Act ; (b) the defendant failed to take steps, as exemplified or particularised in section 15 (2) of the Act, to ensure the health, safety and welfare at work of all its employees; (c) one or more of the defendant's employees was exposed to a risk to his or her health, safety or welfare, whilst at work; and (d) a causal relationship between the facts causing the detriment to safety and the defendant's acts or omissions.

17 In relation to s 50(1) of the Act the prosecutor must prove the defendant was a director or a person concerned in the management of the relevant corporation. The defences available to the personal defendant are that he or she was not in a position to influence the conduct of the corporation in relation to its contravention of s 15(1), or he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

18 I am satisfied on the evidence that Inspector Dell is an inspector within the meaning of the Act and had the relevant authority pursuant to s 48 of the Act to institute proceedings against the defendants. I am also satisfied that the corporate defendant was an employer carrying on the business of sawmill operations at Niangala Road, Niangala in the State as at 2 May 2000 and employed Wayne Stanley Davison. I am also satisfied that Braith Murray Vidler was a director of the corporate defendant for the purposes of s 50 of the Act and at the time of the accident was the general manager of the sawmill, running the operation of the mill on a day to day basis. The mill employed approximately 20 employees.

19 Mr Davison was killed when he was hit by a log forwarder being operated by Mr Fitzpatrick in the sawmill. In Inspector Brian Dell v Jeffrey Fitzpatrick it was observed that: 5 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. … 9 … 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.

20 Mr Fitzpatrick, was prosecuted under s 50(1) of the Act and fined an amount of $3,000. In fining the defendant the Court said: 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 [in WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 84 at pars [83] to [85]] and significantly reduce the fine in light of the defendant's limited means and impecuniosity.

21 In the present proceedings I am satisfied that the prosecutor has made out each of the relevant particulars against each of the defendants, including that the defendants failed: (i) to provide and maintain a safe system of work for the manoeuvring of a log forwarder at the said site; (ii) to provide and maintain a safe system of work for the unloading of logs at the said site; (iii) to provide or maintain a safe system of work to ensure employees were not struck by moving plant at its place of work; (iv) to provide such adequate instructions and information as were necessary to ensure the health and safety of employees at its place of work; (v) to provide such adequate training as was necessary to ensure the health and safety of employees at its place of work; (vi) to provide adequate supervision as was necessary to ensure the health and safety of its employees at its place of work.

22 The evidence reveals an appalling lack of regard on the part of the defendants for occupational health and safety. There were no, or no adequate, procedures for inducting employees in relation to occupational health and safety matters. Mr Vidler said that employees were provided with a handbook on safety but believed no one would have read it. There were no adequate measures in place to avoid collisions between personnel and vehicles within the mill. In this respect, there was no audible alarm or other warning devices to warn persons that the log forwarder was moving or about to move; there were no spotters or guides in place to ensure the log forwarder could move about the yard safely. There was no safe system of work for the unloading of logs. 23 One employee said that he believed that yellow lines were marked on the concrete delineating areas that were restricted but he could not see them because they were covered in saw dust. There was no adequate supervision as to employees or, indeed, visitors entering the area where the log forwarder was operating and Mr Vidler agreed that he had not told Mr Fitzpatrick that persons might be working in the log yard while he was operating the log forwarder. Prior to the accident there was no signage or other instruction indicating that the loading and log areas were exclusion zones or "no go" areas. Prior to the accident there was no safety committee on site.

24 As to the causal relationship between the facts causing the detriment to safety and the defendants' acts or omissions, I am reminded of what Hungerford J said in WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at pp 43-44, as follows: I accept [senior counsel's] submission that the causa causans of the accident was the use of the industrial hammer to strike the legs of the structure. However, that was only the immediate cause of the collapse and which cause could not have become operative without the defendant's failure to assess the stability of the structure on the day it was to be demolished and to provide adequate supervision to ensure the planned system was followed. Put another way, although the causa causans may seem innocuous enough, and as not involving very much culpability on the part of the defendant itself, the real failure here by the defendant to provide or maintain a safe system of work was the causa sine qua non being the preceding link in the chain of causation in failing to assess the structure's stability by adequate supervision at the time it was to be demolished; the failure to ensure work was not performed on the structure prior to the arrival of the mobile crane was contrary to the proposed method as originally planned.

25 In this case, whilst the causa causans of the accident was the log forwarder striking the deceased, the preceding link in the chain of causation was the defendants' failure to ensure the safe use of mobile equipment in the log yard. If there had been a safe system in the first place the accident would have been avoided.

26 In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIR 316 at par [78] Walton J, Vice President stated: Thus, in order to meet the requirements of s15 of the Act, the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. That is, to reiterate what was stated by the majority in Cullen v State Rail Authority (at 219): In order to ensure such a system was safe as required by s15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case.

27 In the present case the evidence shows that there was no "coherent and systematic" system of work in relation to occupational health and safety. What measures that had been taken were haphazard at best.

28 I consider that on the evidence the prosecution has proved beyond a reasonable doubt that the defendants are guilty of the offences as charged. I so find.

29 I turn to the question of penalty. As Kirby P stated in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (at 698): [T]he maximum penalty available for an offence reflects the 'public expression' by parliament of the seriousness of the offence ... a large penalty indicates the gravity of the offence as perceived by the community ... The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 30 The maximum penalty in the case of a breach of s 50(1) by an individual who has not offended previously is $55,000 and the maximum penalty in the case of a breach of s 15(1) by a corporation who has not offended previously is $550,000. 31 In assessing the nature of the penalty to be imposed, the primary consideration is the objective seriousness of the offence. Once the seriousness of the offence is established, it is open to the Court to take into account matters subjective to the defendants. As Hungerford J said in WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce.

32 In Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 the Full Bench (at 476) considered the factors to be taken into account in assessing the objective seriousness of an offence: In the case of an offence under s15(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. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at 9), properly in our view, that a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.

33 The risk to safety presented by the operation of the log forwarder in the log yard where there was pedestrian traffic was obvious in circumstances where the forwarder was not fitted with any warning devices as to its movement and where the system of work for unloading the logs obscured the operator's view. Moreover, no training or instruction was given to persons regarding the risk associated with the operation of the log forwarder in the log yard and there was no control or supervision of persons in the area where the log forwarder was operating.

34 The objective seriousness of this breach is heightened due to the failure of the defendants to take simple and straightforward remedial steps to eradicate the risk even though such measures were available and feasible, see: Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8. The employment of warning lights or sirens, spotters, guides, safety fences and the like were all feasible options at the time of the accident. They were available to the defendants and may well have prevented this accident.

35 The offences involved a fatality. Whilst of itself a fatality does not dictate the seriousness of an offence, it is well settled that the occurrence of death or serious injury may manifest the degree of seriousness of the risk to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79, 80. 36 With respect to the failure by the defendants to provide appropriate training and instruction, reference may be made to what the Full Bench said in Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at par [58]: The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education).

37 There was a complete failure by the defendants in this case to meet the type of obligations laid down in Genner Constructions. Little or no training was provided to employees in relation to safe working practices and working with mobile plant. What training there may have been in safe working practices was haphazard and of little utility.

38 One of the principal aims of punishment is deterrence. The relevant principles relating to deterrence were discussed in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. The logging/sawmilling industry involves the use of heavy machinery and equipment with personnel working in close proximity to such machinery and equipment. That it is a dangerous industry is highlighted by four relatively recent judgments, namely: Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286; Inspector Brian Dell v Baradine Sawmilling Co. Pty Ltd. Inspector Brian Dell v Gunnedah Timbers Pty Ltd. [2002] NSWIRComm 304; Inspector Neil Buggy v Weathertex Pty Ltd [2002] NSWIRComm 160; and, Inspector Barber v Storite Pty Limited [2003] NSWIRComm 228. It is appropriate that any penalties in this case reflect the need for general deterrence.

39 As to specific deterrence, the objective is to deter the particular defendant from repeating the offence. The propensity to re-offend must be considered when determining what weight is to be attached to the need for specific deterrence. As to the corporate defendant, Mr Vidler is the sole shareholder and, of course, neither defendant has appeared to face the charges. In the circumstances, given the nature and quality of the offences I consider there is every potential for the defendants to re-offend. I, therefore, propose to include an element in the penalty to reflect the need for specific deterrence in relation to both defendants.

40 I do not consider there are any mitigating factors in respect of either of the defendants that would provide a basis to discount any penalty I might impose. In the case of the personal defendant there is no basis upon which it could be said that any penalty should be consistent with that imposed on Mr Fitzpatrick who was able to demonstrate to the Court his impecuniosity and very difficult personal circumstances.

41 In considering what might be appropriate penalties I have been careful to maintain a proper perspective of the evidence as it relates to the relevant objective factors I am required to take into account in sentencing the defendants and I have avoided being influenced by the defendants' failure to appear to answer the charges except in relation to the question of specific deterrence.

42 An objective consideration of the nature and quality of the offences, however, leads me to the conclusion that they were most serious and deserving of penalties towards the higher end of the range of penalties handed down by the Commission in Court Session.

43 In the case of the corporate defendant I consider an appropriate penalty is $270,000 and in the case of the personal defendant $27,000.

44 The Court makes the following orders: Matter No 1906 of 2002 - Wyoming Mill Pty Ltd 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $270,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed, or in default of agreement, leave is granted to either party to approach the Court for final orders as to costs. Matter No 1909 of 2002 - Braith Murray Vidler 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $27,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed, or in default of agreement, leave is granted to either party to approach the Court for final orders as to costs.

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.