Inspector Ching v Bros Bins Systems Pty Ltd [2009] NSWIRComm 155 | Case summary

1 On 17 September 2009, the defendant, Bros Bins Systems Pty Ltd ("Bros Bins") was found guilty of a breach under s 17(1)(b) of the Occupational Health and Safety Act 1983 ("the Act") following a prosecution by Inspector Ching: Inspector Ching v Bros Bins Systems Pty Ltd [2009] NSWIRComm 154. 2 The findings made by the Full Bench in Inspector Ching v Bros Bins Systems are contained in its judgment on liability. The Full Bench stated at [35] - [37]; [41]; [43] - [44]: [35] It is possible to resolve the question of the existence of an offence under s 17(1)(b) of the Act relatively shortly. The starting point for this consideration must be to observe that the performance of work by a person near or under a large elevated hoist on the back of a truck, presented a clear risk to the safety of persons working underneath it, due to the potential of the hoist falling on top of a person. In order for such work to be carried out, an employee of the defendant was required to operate the hoist on the truck. To that extent, the defendant had control of the truck whilst the repairs were being carried out. Furthermore, the defendant did not have any systems in place to ensure that if a person, other than the driver, entered the cabin of the truck, such person did not interfere with the control levers. Such a system would have required the driver to at least warn persons of the risk associated with interfering with the control levers. ... ... [36] It is appropriate to consider each element of the case advanced by the prosecution. First, it is convenient to consider the allegation that the defendant failed to provide a safety mechanism to prevent the jib tipping midsection of the truck from descending whilst service/repair work was being carried out underneath it. There can, in our view, be no dispute, as we have already observed, that the risk to health, safety and welfare of persons working underneath the jib or hoist was created as a result of the absence of any safety prop. [37] Mr Turnbull gave evidence that fixed tipper trucks have built in safety props. The particular vehicle involved in the incident was not a fixed tipper truck. The reason advanced for a prop in a fixed tipper truck is because the tipper cannot be removed from the vehicle. Therefore, if work is required on it, there is a safety prop. Mr Turnbull said that, prior to the incident, he had not given consideration as to whether or not it was appropriate to have a service prop built on the truck involved in the incident. On the day of the incident, the evidence was that Mr Whitehouse and Mr Targett experimented with the use of a metal bar as a prop, but this proved unsuitable. In the absence of any effective prop, the danger of the jib or hoist collapsing was clear. ... [41] Thirdly, it was alleged that the defendant had failed to install a safety lock, shroud or other safety mechanism on the hooks lever. The evidence was that there was no safety lock on the lever. ... [43] ... It is unnecessary to engage in a search for the cause of the accident. What is required is a focus on the risk to safety that occurred on the day of the incident. The risk that was occasioned to someone working under the jib was created, first, that the lever was not secured or fixed, and secondly, by the fact that the lever was not properly labelled. That risk existed whether or not the jib collapsed and whether or not Mr Targett knocked the lever. The risk of not having a properly labelled switch created the possibility that someone might either advertently, or inadvertently, interfere with the switch because it did not have an appropriate identification label. Furthermore, the absence of any safety mechanism securing the lever allowed it to be bumped or knocked and therefore to become active. If a prop had been placed under the jib, it would have prevented it falling in the event of this occurring. [44] It follows from the foregoing discussion, that the defendant failed to ensure that the truck was safe and without risk to persons repairing, or servicing, the truck and that such persons were adequately supervised and instructed on the safe operating procedures of the truck. The defendant is thereby guilty of an offence under s 17(1)(b) of the Act in relation to the charge brought in those proceedings, unless it is able to make out a defence under s 53 of the Act. 3 The defendant adduced oral evidence from Mr Joshua Turnbull, its sole director. whose evidence was to the effect that employees were normally concerned only with the driving and operation of the truck, including the pneumatically driven rear-loading hook lift mechanism. Drivers were not required to perform (and did not perform) any work under the tipper section of the truck. 4 It was the evidence of Mr Turnbull, assisted by a series of photographs, that it was possible for some, if not most, of the time for this work to be undertaken without the lifting mechanism having been raised. Mr Turnbull also gave evidence that a counterweight device had now been attached to the vehicle to ensure that the hooks would not come undone if the pneumatic air system failed, or ceased to operate, that a service prop had been installed to support the lifting mechanism, and that a warning sign had been affixed to the truck. 5 Clearly, all of these measures that would, or could, have avoided the incident that occurred, were readily available and could have been implemented without significant cost. Mr Turnbull said that no competitor had utilised the same safety measures which were now a feature of his operation, as previously described. 6 Mr Turnbull also gave evidence that, at no time, had he ever contemplated that this type of incident might occur. He said that, in future, no employee of his would be required to work underneath the raised section of the truck, nor could he contemplate that maintenance or repair work would need to be carried out on the truck from underneath the raised jib. 7 Mr Turnbull also gave evidence of his work, being in excess of 20 years, in the construction and earth demolition business, in which neither he, nor any employee, had been involved in any significant accident. 8 It was the evidence of Mr Turnbull that he was devastated by the death of Mr Matthew Whitehouse, an employee of Exo Pty Ltd t/as Tibby Rose Auto ("Tibby Rose"), whom he had known. In addition, his employed driver did not recover from the consequences of the incident. Furthermore, the defendant had been exposed to the risk of and actual prosecution proceedings for a period in excess of five years, which had had an impact on both he and his wife, and the operation of the affairs of the defendant. 9 The starting point for the fixing of an appropriate penalty is the objective seriousness of the offence: see Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92. It is quite clear, as outlined in our previous judgment, that whilst Mr Whitehouse was working underneath the raised section of the jib, there was a real and obvious risk of injury if it collapsed. The defendant's submission, based on the evidence of Mr Turnbull, was that it was unforeseeable that any person performing repair work on the vehicle would come to be injured, whether fatally or otherwise, in the manner which occurred. That is an assessment which was made by reference to the overall activities of the defendant's organisation. The fact that for the vast bulk of the time the vehicle was being utilised in carrying out normal activities does not lead to the conclusion that the risk of injury if the jib collapsed whilst the repairs were being undertaken was unforeseeable. 10 In our opinion, the aforementioned submissions by the defendant represent an inappropriate and impermissible manner in which to approach an assessment of the objective seriousness and overall nature of the offence. This must be undertaken by reference to each discrete circumstance in which the operation of the truck might create a risk of injury. Accordingly, the foresight and vigilance expected of this defendant applies to all of the circumstances in which persons may come to work in, on, and under the vehicle, including circumstances where it may be maintained, or repaired. On this basis, the fact that the truck was used on an isolated occasion for the purpose of effecting repairs does not avoid the responsibility and obligations of the defendant imposed under the Act. Nor does it mean that the risk was not reasonably foreseeable. 11 Although the defendant submitted that the incident was "freakish" in that it occurred only because the lever which operated the pneumatic system was moved inadvertently, or otherwise accidentally, in our view, the risk to safety of persons working under the elevated jib or hoist on the truck was obvious and foreseeable. The defendant was obliged under the Act to take measures to avoid that risk. The question of foreseeability does, however, play some part in the assessment of the overall culpability of the defendant. It was submitted, on behalf of the defendant, that the incident occurred at third party premises in circumstances where persons with apparent competence were undertaking an investigation into the electrical system of the truck. Although the defendant had, as we have found, control over what was occurring, the basic work which was being carried out on the truck was being performed by employees of Tibby Rose. Nevertheless, as Walton J Vice-President observed in Inspector Howard v Baulderstone Hornibrook Pty Ltd (at [244] - [246]), the defendant was required under the Act to proactively search for and identify all possible risks and be diligent to ensure safety. A further factor to be taken into account is the role of the designers of the truck in contributing to the detriment to safety. This aspect should result in the defendant receiving a moderate reduction in penalty: see Inspector Howard v Baulderstone Hornibrook Pty Ltd (at [248]). 12 All of these factors go variously to the aggravation or mitigation of the seriousness of the offence. 13 In assessing the penalty, we also take into account the general deterrent effect of the imposition of a penalty, particularly in light of the evidence given by Mr Turnbull in respect of industry practices. Specific deterrence, in light of the defendant having ceased to trade, should not feature in the penalty. Overall, we consider the offence to be serious. 14 By way of subjective features, we note that it was conceded that the defendant co-operated with the WorkCover Authority of New South Wales ("the WorkCover Authority") in connection with its investigation of the incident, and that the defendant, through Mr Turnbull, has expressed contrition for what occurred. We also take into account the defendant's previous good record and that it has no prior convictions. 15 The defendant before Marks J, submitted that the Court should take into account the delay which had occurred between the time of the incident and the date of conviction, which extended over a period in excess of five and a half years, as at the time of the original sentencing hearing. In making such a submission, Mr Kintominas of counsel, who appeared for the defendant at that time, relied upon the judgment of the Victorian Court of Appeal in Miceli (1997) 94 A Crim R 327. 16 In that case, Tadgell JA referred to the need to take into account overall delay between the commission of an offence and the imposition of a sentence by reference to the prospect of rehabilitation, and the need for a personal defendant to structure his or her affairs and re-organise his or her life by reference to a sentence of imprisonment. Winneke P and Charles JA agreed with his Honour's judgment. Charles JA also delivered some additional comments which referred to the exercise of mercy, which is reflective in some extension of leniency in imposing a sentence. 17 The circumstances of the delay in these proceedings need not be traversed in any detail. It is sufficient to state that finalisation of the proceedings was delayed as a result of a successful appeal by the prosecutor against acquittal. Subsequently, the defendant challenged the decision of the Full Bench in the Court of Appeal. Whilst the observations of the Victorian Court of Appeal in Miceli do have application to the circumstances of a personal defendant facing a penalty of imprisonment, we do not apprehend that there are any circumstances which attach to these proceedings which would justify any reduction in penalty by reference to the delay which has occurred. On one view of it, the defendant has had the use of such monies as it will now be compelled to pay by reference to the monetary penalty to be imposed on it. 18 The defendant, during submissions on sentence, relied upon s 6 of the Fines Act 1996. This requires the Court to take into account the means of a defendant to pay any penalty. However, since this submission was made, Mr Daniel P Juratowitch has been appointed liquidator of the defendant by a resolution on 4 June 2009. On 21 July 2009, the liquidator informed WorkCover Authority that "I have not provided and do not intend to provide instructions to any legal representatives in the above proceedings." The liquidator also confirmed that it would not assume any liability in relation to any actions of the defendant prior to the appointment. 19 The relevant principles in relation to the application of s 6 of the Fines Act 1996 have been considered in a number of judgments in this jurisdiction. In Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 at [21], the Full Bench observed: "... Section 6 of the Fines Act 1996 NSW requires a court, in the exercise of its discretion to fix the amount of any fine, to give consideration to the defendant's means to pay the fine. In doing so, the section requires the court to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. Plainly, s 6 provides the court with an obligation to consider the defendant's means in a practical and commonsense way. ..." See also T & M Industries Pty Ltd v Inspector James [2007] NSWIRComm 85 at [31] - [32]; WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty (2005) NSWIRComm 361 at [75] - [76]: 20 The evidence in respect of the defendant's financial means is stark, although the liquidation of the defendant is a relevant factor. We propose to take into account the defendant's financial position in determining sentence. 21 In determining penalty, we are also mindful that there was before the Court, at first instance, a co-defendant "Exo Pty Ltd t/as Tibby Rose Auto". Tibby Rose operated the auto electrical shop where the truck was taken to be repaired. The vehicle was under the defendant's control and the defendant had its driver present at all relevant times when the vehicle was being repaired. The prosecutor submitted that the culpability of each defendant was probably the same. In our view, this submission is correct. Neither defendant did a risk assessment. Neither defendant had implemented a safe system of work. Neither defendant took any of the obvious remedial steps that were available prior to the incident, nor foresaw the consequences of what happened. The considerations for general deterrence are similar. In our view, the culpability of each defendant was therefore about the same. 22 At the conclusion of the hearing in respect of liability, subject to the Full Bench's deliberations, the Court invited the prosecutor to provide written submissions in respect of whether the principle of double jeopardy arose, if the Court reached the question of sentence. 23 Mr Reitano of counsel, who appeared for the prosecutor, submitted that no such question arose for consideration. Counsel submitted that, first, there had, in a formal sense, been no penalty imposed upon the defendant because the Court of Appeal quashed the sentence imposed by Marks J, as it was imposed without jurisdiction. 24 The relevance of a successful appeal against a conviction and sentence based upon a want of jurisdiction for technical reasons was specifically dealt with by Howie J (with whom Hume and Simpson JJ agreed) in R v CJP [2004] NSWCCA 188 at [46] - [51]. It is important to note that the statement of principle by Howie J refers to the practise following "retrial" (something to which the appeal under s 197A would appear to be directly analogous). That "practise" is that "ordinarily" an offender should not receive a longer (higher) sentence on retrial. However, the Court, at the conclusion of the retrial, retains a discretion to impose a greater sentence (at [47]). The rule, therefore, is not one of inflexible application (see also R v MM (2002) ACrimR 216 where a similar approach was taken). These principles have been more recently discussed in Tarrant v R [2007] NSWCA 124 (esp at [18] - [31]), with the Court accepting that the principle is a prima facie one that "ordinarily" applies but that the circumstances of the case and the public interest may militate against its application. 25 The issue then arises as to what approach the Court should take to sentencing under s 197A of the Industrial Relations Act 1996 ("the IR Act"). The Court's task under that section is to "make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged)." (See s 197A(7)(b) of the IR Act). Again, the issue was dealt with by Howie J in R v CJP. His Honour directly addressed the issue at [62] and [63] where his Honour said: [62] Considerations such as "triple jeopardy' and the uncertainty and frustration felt by the respondent must not be disregarded but they have to be weighed against the seriousness of the offences and the public interest in appropriate punishment being imposed on offenders notwithstanding their personal circumstances. Double jeopardy, or even triple jeopardy, is not a concept that is to be considered in a vacuum. The uncertainty or disappointment experienced by the respondent as a result of the Crown appeal and the failure of Acting Judge Moore to impose the sentence he intended cannot be compared with that of an offender who, for example, does not know whether he will be required to serve a gaol sentence pending the outcome of a Crown appeal or one who has the expectation of an early release date frustrated by a failure of the sentencing judge properly to exercise the sentencing discretion at first instance. [63] In the present case I am not persuaded that the effect upon the respondent of the failure of the judicial system to punish him appropriately is such that it should operate significantly in his favour or should relieve a court from doing its duty to protect the public. Nor should it dissuade this Court from intervening when it is confronted by a sentence that so far falls short of what was required. To the extent that his Honour may have imposed this sentence as a result of overly taking into account triple jeopardy and delay in the finalisation of the sentencing proceedings, he erred. 26 In this matter, the position in relation to sentencing, should be readily no different from that which should apply in any event. That is, the defendant should not receive any significant advantage as a result of any penalty to be imposed upon it, for the "failure" of the judicial system to deal with it appropriately (to use the words of Howie J in CJP). 27 We turn to the question of costs. The Court of Appeal quashed the order made by the Full Bench in the acquittal appeal proceedings that the defendant was to pay the prosecutor's costs. It also quashed the costs order made against the defendant by Marks J in the remittal proceedings and the costs order made against the defendant by the Full Bench in the appeal brought by it against the finding of liability and the penalty imposed by Marks J. The costs of these various proceedings were remitted to this Court for determination. 28 The prosecutor submitted that it should have its costs of all of the proceedings. Counsel relied on the following reasons: First, the prosecutor has been singularly successful on the point that the defendant had continually refused to concede, namely, the meaning of "plant". 29 Secondly, the defendant's "success" on the issue of remitter was not a matter raised by the defendant before the acquittal appeal hearing, or before Marks J. It was a matter raised by the Full Bench in the second appeal where the defendant challenged the findings in respect of liability and the imposition of a penalty. It was submitted that it was the defendant's conduct of the case, in particular the misconceived "no case to answer" submission, that led to the question of the remitter. 30 Thirdly, the failure by the defendant to take the "remitter point" before it, was raised by the Full Bench disentitles the defendant to costs before then. In the alternative, the prosecutor submitted that, should there be any special consideration of costs, it should be limited to the discreet issue of "remitter" and that the appropriate order should be in respect of that discreet issue, each party bear their own costs. 31 Orders in relation to costs are discretionary and as a general rule, costs "follow the event": Workcover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) (2003) 124 IR 459. However, costs may be denied to a party because of the parties being only partially successful, or because of the manner in which it has chosen to conduct its case: see O'Sullivan v Crown in Right of State of New South Wales (Department of Education and Training) (2003) 128 IR 158 at [196] - [199]. 32 The prosecutor was successful in its appeal against the acquittal of the defendant. That decision was not reversed by the Court of Appeal. In our view, the prosecutor is entitled to its costs in respect of that appeal and the proceedings before Marks J, where his Honour acquitted the defendant. In respect of the subsequent proceedings, being the liability and penalty proceedings before Marks J and the subsequent further Full Bench appeals, each party should bear their own costs. The defendant should pay the prosecutor's costs of these proceedings, which arise pursuant to s 197A of the IR Act. 33 The maximum penalty, noting that the defendant has no prior convictions is $550,000. Taking into account all of the matters raised, in our view, the appropriate penalty is $50,000. ORDERS 34 We make the following orders: 1. The defendant is guilty of the offence as charged and is convicted.

Inspector Ching v Bros Bins Systems Pty Ltd

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Judgment (14 paragraphs)

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