Inspector Christensen v MVM Rail Pty Ltd

Industrial Relations Commission (NSW)|2013-09-30|Before: Boland J, Fisher CJ

WorkCover Authority of New South Wales (Inspector Madeline Christensen) (Prosecutor) MVM Rail Pty Limited (Defendant) Representation: Ms A Mitchelmore of Counsel (Prosecutor) Mr G M Watson, Senior Counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Lee and Lyons Lawyers (Defendant) File Number(s): IRC 282 and 283 of 2011

Prosecutor's evidence 9The prosecutor's evidence consisted of an Agreed Statement of Facts of 14 pages (a copy of which is annexed to this judgment), together with the following material: a. Factual Inspection Report of Inspector David Barker. b. Factual Inspection Report of Inspector Graeme Aldred. c. Photographs taken by Inspector Aldred. d. Photographs taken by Inspector Barker. e. Taylor Rail Purchase order raised by MVM Rail. f. Taylor Railtrack Safe Work Method Statement for Turnout Installation (SWMS 017-03). g. Boom Logistics Job Safety Analysis for Crane Operations (JSA No. 57965). h. Boom Logistics Lift Study/Plan for installation of 9 Rail Sections at Farley Crossover. 10Additionally, the prosecutor tendered an ASIC company search for the defendant and a prior convictions statement indicating the defendant had no prior convictions.

Defendant's evidence 11For the defendant, Mr Brian Lockwood gave oral evidence. Mr Lockwood was, at the relevant time, rail safety manager for the defendant. Mr Lockwood gave evidence regarding his experience in rail safety, which the Court accepts as being extensive. His other evidence was that: a. the defendant had appropriate safety systems in place at the time of the incident; b. MVM had special expertise in rail safety; c. he investigated the incident in which Mr Iosefa was killed and Mr O'Sullivan severely injured; d. the task of laying the rail panels was "hopelessly designed"; e. the defendant provided labour to Taylor Rail Track Pty Ltd, later known as Hebron Holdings Pty Ltd, on a labour hire basis; f. Mr O'Sullivan was employed by the defendant as a track supervisor but not directly supervising workers; g. when asked what he recommended being done to prevent a recurrence of the incident, Mr Lockwood replied: After the incident we looked at the way that we were contracting our workers and it was decided that this type of contracting arrangement would not be done in the future; that we would take supervision and control of parcels of work, rather than just labour hiring. We also looked at our safety culture and programmes and we developed a system called "Safety For All", which was a safety culture programme. It was an initial workshop providing guidance to our staff on how to act and work safely. We also produced a number of training programmes and specifically for this issue a programme called "Working with Rail", which was half a day training programme with on site instruction and it dealt with very specifically each type of work where we were related to the lifting and moving of rail. There's a number of different types of ways of doing it. Panel lifting, as this was done, was one type of moving rail. h. After he recovered from his injuries Mr O'Sullivan returned to work with the defendant. During the course of his recovery the defendant provided Mr O'Sullivan with counselling and rehabilitation assistance. Mr O'Sullivan recently left the defendant's employ to take up a position with another company.

Circumstances in which the offences occurred 12The prosecutor has accurately summarised from the agreed facts the circumstances in which the offences occurred. What follows is taken from the prosecutor's submissions, which the defendant accepted had been fairly put. 13The works in which MVM was involved on 24 March 2009 formed part of construction and upgrade works which the Australian Rail Track Corporation Ltd was undertaking on the Main North Rail Line. The project involved the construction of track work and miscellaneous works, including the replacement of a section of railway lines and supporting concrete sleepers. The new railway sections were lifted into place at the site via a mobile crane. 14Taylor Railtrack engaged the defendant to provide labour for the installation works at the Farley site. In turn, MVM engaged GTE Workplace Management Pty Ltd ("GTE") to provide additional installation workers. Mr Iosefa and Mr McDonnell were among the three or four GTE employees on site at the time of the incident. MVM had approximately 10 employees performing installation work at the site and had contracted approximately 3 additional workers to assist with the work. 15Pursuant to the agreement between Taylor Railtrack and MVM, MVM was required to provide a supervisor for the night shift crew. Although Mr O'Sullivan was employed as a Supervisor with MVM, he thought the MVM workers were working as a labour crew for Taylor Railtrack and that they were under the instructions of the supervisors of the companies they were working for. Mr David Rumble (Rail Safety Operations Manager, MVM) described the MVM workers as supervised by Taylor Railtrack at the time of the incident, with Mr O'Sullivan acting as a leading hand at the site. 16At approximately 7.00 pm on 24 March 2009, the night shift crew commenced work at the site. Between 8.30 pm and 9.30 pm, the Boom crane crew lifted and installed two panels, known as "Panel 3" and "Panel 4", without incident. At approximately 9.30 pm, the crane crew relocated to the next designated area and set up the crane to lift "Panel 5" onto the track in accordance with the Lift Study Plan that had been prepared for them. 17Panel 5 consisted of six standard railway lines, each measuring approximately 12.4 metres. The railway lines were mounted in a parallel fashion across 21 concrete railway sleepers, which measured approximately 7.1 metres in length, 300 mm in height and 250 mm in width. The lines were secured to the sleepers by the use of "Pandrol" brand clips, which consisted of a flat, 2 side plates and 2 round rod metal "pig tail" shaped securing pins. Panel 5 weighed 34.7 tonnes. 18In order to lift the panel, the dogmen attached two sets of lifting chains (four chains in total) to the rails. One chain was placed under the second rail and the other chain was placed under the fifth rail. Both of the chains cradled the load around the rails between the sixth and seventh sleepers in from each end and ran underneath the mid rails. 19At approximately 10.30 pm, the crane crew commenced lifting Panel 5 from the lay down area into its position on the track. However, when the Panel was placed in location it was discovered that the end of the rail lines did not meet and the Panel could not be correctly aligned with the previous panel. The crane crew placed the load on the ground, and the installation workers attempted to realign the panels by removing some of the Pandrol clips from a mid rail and adjusting the rail with the use of an excavator. However, when the crane crew again lifted and attempted to place the Panel it became apparent that the attempt to correct the misalignment had not been successful. 20A discussion then ensued for approximately 20 minutes between a number of individuals on site, including Mr Paul Harris (Abigroup NSW Rail Manager), Mr Tim Horan (Construction Manager, Taylor Railtrack), Mr Geoff Drewe (Senior Project Engineer of Abigroup) and Mr Jason Stewart (Survey Technician, Rail and Road Professional Services). Whilst these discussions were occurring, the crane driver lowered Panel 5 to the ground, but he did not release all of the load from the crane. Of the total load of 34.7 tonnes, 31 tonnes remained under weight. 21In the course of the discussion, Mr O'Sullivan was asked for his opinion, but he did not participate in the final decision-making process. He did not consider it to be part of MVM's role, as he considered that the MVM employees were on site in a labouring capacity and, accordingly, he made a suggestion but then removed himself from the decision-making. 22A decision was made to unclip a number of Pandrol clips so as to remove a further two rails and slide them back into alignment. Mr Horan instructed the workers to undertake this task. A number of installation workers assisted, including Mr Iosefa, Mr O'Sullivan, Mr Dixon and Mr McDonnell. All but one of the workers involved in the incident, along with Mr Horan and Mr Harris, were unaware that Panel 5 was still under weight. 23As the installation workers were in the process of removing the Pandrol clips, they removed clips from rails that were directly under the load of the chain. As the clips were removed, it appears that the integrity of the remaining clips weakened, leading to excessive tension being placed upon the line. Shortly thereafter, a number of rail lines suddenly sprang free from the Panel and struck a number of the installation workers who were on the Panel. 24Mr Iosefa sustained fatal injuries as a result of the incident. Mr Dixon sustained a broken right leg, and Mr McDonnell received a laceration to the head, a broken shoulder, a broken ankle and (unspecified) injuries to his calf muscle. Mr O'Sullivan sustained a severe crush injury to his forearm and ultimately required amputation above the elbow.

Risk to safety - labour hire firms 25The fact that an employer is a labour hire firm and hires its employees out to other companies in circumstances where the labour firm has no direct management or control over its employees, does not obviate or diminish the obligations of the labour firm to ensure its employees or other workers it has engaged are not exposed to risks to their health and safety: see WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374; Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432; WorkCover Authority of NSW (Insp Robins) v Labour Co-operative Ltd (No 1) [2001] NSWIRComm 223; (2001) 108 IR 283 and WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447. 26As the prosecutor correctly submitted, by failing to ensure that its employees, and the GTE employees it also engaged, were supervised on site by a person who understood that it was his responsibility to oversee the occupational health and safety of those employees and exercised that responsibility, MVM removed one of the "layers of safety" it was required to provide in meeting its obligations under the Act: Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55 at [103] per Kavanagh J.

Reasonably foreseeable 27Although MVM could not have foreseen what in fact occurred on site, it is not the accident itself that constitutes an offence under s 8(1) or s 8(2) of the Act, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work: Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) . It was reasonably foreseeable that by reason of its omission to provide its employees and the employees of GTE with adequate supervision, those employees would be exposed to risk. 28The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being considered to be more serious: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [81]-[82]; Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 and Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66.

Remedial Steps or Measures 29It 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: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476 and Morrison v Powercoal Pty Ltd & Anor (No. 3); [2005] NSWIRComm 61; (2005) 147 IR 117 at [90]. 30The simple measure available in this case was to ensure Mr O'Sullivan understood that, although under the direction of Taylor Railtrack, in the interests of the safety of MVM's employees and the employees of GTE, he was also responsible for independently assessing and evaluating the risk associated with the activities being carried out on site.

Damage or injury caused by the contraventions 31Although the damage or injury caused by the contravention of the Act does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: see Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17]-[18]. 32Mr Iosefa was killed and Mr O'Sullivan and others sustained serious injury. It is apparent from the circumstances of the incident that more workers could have died. The risk was serious.

Contribution of others to the risk 33There were other companies that were directly responsible for the works on site, and which had responsibilities to conduct risk assessments and ensure adequate systems of communication were in place between the various contractors: Taylor Railtrack for example, which was fined $83,000 for a contravention of s 8(1) of the Act and $117,000 for a contravention of s 8(2) of the Act for its part in the incident: Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31. 34I note what the Agreed Facts said about Boom Logistics. On the basis of those facts it does seem to me the defendant is considerably less culpable. The same conclusion may be reached in respect of Taylor Railtrack, whose failures were far more extensive than that of the defendant. 35However, whilst the role played by other parties is necessary to be considered as part of a review of the total circumstances of the case, that cannot be used to itself "reduce the culpability of a defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged": WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 at [46]. See also WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312 at [53].

Maximum penalty 36MVM has no prior convictions. The maximum penalties available for the present offences are, therefore, $550,000 for each offence.

General and specific deterrence 37The penalty to be imposed should reflect both elements of general and specific deterrence: Capral Aluminium at [71]-[80]. As Hungerford J observed in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388: The fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risk to the their health and safety at the work place. 38In respect of specific deterrence, the defendant continues to be an employer in a relatively dangerous industry and it is appropriate to deter MVM from committing similar offences in the future by including an element in the penalty for specific deterrence.

Subjective factors 39The defendant entered pleas of guilty. However, the prosecutor submitted the pleas were not entered at the earliest opportunity. The defendant did not cavil with that submission. 40MVM entered pleas of not guilty on 12 April 2012, with respect to both charges. It changed those pleas on 5 March 2013. However, the prosecutor noted that MVM did plead guilty before the commencement of the defended hearing involving Abigroup and GTE. 41I accept that the pleas were not entered at the earliest opportunity. However, there was a saving of resources once the pleas were entered. I propose to discount the sentences by 15 per cent for the utilitarian value of the pleas. 42The prosecutor, as do I, accepted that MVM cooperated with the WorkCover Authority of New South Wales during its investigation of this incident. 43The prosecutor also acknowledged the steps taken by the defendant to address its failures after the offences. The defendant did take those steps and did so in a timely way. 44On the question of remorse, Mr Watson SC for the defendant submitted that I should draw a very strong inference of remorse or contrition from the fact of the guilty plea and the cooperation in the investigation and from the evidence regarding the rehabilitation of Mr O'Sullivan. I will allow some concession for remorse, but it was not expressed or demonstrated as well as it might have been. 45Finally I note that until now the defendant has had a clean record.

Totality 46The Court is required to apply the principle of totality in determining the appropriate penalty. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate": Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63 citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-57; cited with approval in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [18]: see Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156 at [78] and Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) at [63]. 47There is a very substantial overlap between the two charges. However, I must have regard to the fact that the defendant had failed to ensure its own employee, Mr O'Sullivan, and employees of GTE Workplace Management were not exposed to risk. The defendant had an obligation to ensure all of those persons were not exposed to risk and the penalty must reflect the seriousness of the defendant's failure in that respect. 48I have concluded that, having regard to the objective and subjective factors and to the discount for the guilty plea, the two offences should attract a penalty of $100,000 in respect of the s 8(1) charge and $140,000 in respect of the s 8(2) charge. Having regard to the totality principle, a penalty of $160,000 appropriately reflects the total criminality involved. The penalty of $160,000 should be split as $66,000 in respect of the s 8(1) offence and $94,000 in respect of the s 8(2) offence.

Orders 49The Court makes the following orders: Matter No IRC 282 of 2011 (1) The defendant is found guilty and convicted of the offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $66,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Matter No IRC 283 of 2011 (1) The defendant is found guilty and convicted of the offence under s 8(2) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $94,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed.

Annexure 1 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2013

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