Inspector Clark v Hamar Engineering Pty Ltd

PROSECUTOR Ms J Fredman of counsel Solicitor for WorkCover: Mr G Henderson Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Ms C Ronalds of counsel Solicitor: Mr J Hansons Hansons Lawyers

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Boland J Date: 17 February, 2003

Matter No IRC 1394 of 2002 INSPECTOR THOMAS CLARK v HAMAR ENGINEERING PTY LIMITED

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 27

1 This is a prosecution by Inspector Thomas Clark of the WorkCover Authority of New South Wales. In an Application for Order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 filed on 12 March 2002 the Inspector alleged that the defendant, Hamar Engineering Pty Limited, failed to ensure the health, safety and welfare at work of its employees contrary to s 15(1) of the Occupational Health and Safety Act 1983.

2 It was alleged that the defendant failed to ensure the health, safety and welfare at work of its employees, in particular, Peter Jann Jammjarv (sic), in that it failed to ensure a system of work that was safe and without risks to health for the lifting and movement of steel plates at the premises ("the operation"). In particular, it was alleged the defendant failed to: 1. conduct an adequate risk assessment prior to carrying out the operation;

2. provide adequate training, instruction and supervision to employees carrying out the operation;

3. provide adequate equipment to carry out the operation safely.

3 The applicant was involved in the business of metal fabrication and engineering. On 29 March 2000 Mr Tammjarv, a boilermaker employed by the defendant, was assisting to lift and place a steel plate into a press. As the plate was being lowered by pendant controlled crane into the press it became jammed. The lifting chains became dislodged from the plate clamps resulting in the plate falling on Mr Tammjarv and causing him injury. The defendant entered a plea of guilty to the charge but it would appear from the agreed statement of facts that particular 1 referred to above was not pressed by the prosecution.

4 The agreed statement of facts described the incident as follows: At all material times Hamar Engineering Pty Limited utilised the following equipment and procedures on the premises (281 Princes Highway, Unanderra): (a) A 600 tonne Hydro Power Bend Press (press) which was electrically/hydraulically powered and was used for bending steel plate. The press consisted of a horizontally positioned bolster that was capable of rise and fall movement. The movement was controlled by two guide columns on either side of the machine. Located at the front of the press was a horizontal feed table approximately 720 mm high. (b) The horizontal distance between the guide columns was approximately 4.5 metres. The width of the work piece was governed by the distance between the guide columns. (c) A controlled (sic) electric overhead travelling crane (crane) with an identification sign attached stating " Crane # 7 - Load not to exceed 15 tonnes - Class 3 " (d) It was normal procedure that a steel fabricated plate clamp with markings " SWL 500kg A1925 5-00 " was placed onto metal plates and locked on by tightening two 16mm set screws. A hole 50mm in diameter was positioned at the top of the clamp, which accommodated the sling or chain hooks for lifting purposes. (e) There were two chain slings, approximately 5 metres long, and one end of each chain was attached to the crane hook and on the other end lifting hooks were fitted. These lifting hooks were fitted with safety latches and their purpose was to prevent slings from being displaced from the hook. On 29 March 2000, Tammjarv was working on an automatic welder in the workshop at the premises approximately 15 metres away from the press involved in the accident. Tammjarv required the crane to perform a lift so he proceeded to speak to Tompkin (the crane operator), who, at the time, was performing a lift for Hinke (boilermaker and press operator). Tammjarv assisted Tompkin and Hinke with the lift which involved lifting and placing a steel plate into the press. The plate was approximately 4.265m long by 1.5m wide by 5mm thick. Tompkin had lifted the plate with the crane and was in the process of putting the plate into the press. Tompkin, Hinke and Tammjarv positioned themselves under the plate as they were placing it into the press. Hinke was on the left of the plate. Tammjarv was on his right and Tompkin was on the outside of the plate operating the crane. Tompkin was pushing the steel plate into place as well as operating the pendant control. As the plate was being lowered into the press it became jammed at the top of the press. The plate was still being lowered by the crane driver and the hooks from the lifting chains dislodged from the plate clamps. resulting in the plate falling on top of Tammjarv. The hooks on the lifting chains did not have safety latches on them to prevent the load from dislodging. Tammjarv suffered a dislocated right shoulder, cartilage problems in his right ankle, right knee pain, restricted movement due to his injuries, neck injuries and damaged vertebrae in his back.

5 Following the incident the agreed statement indicated that the defendant took steps to replace all lifting hooks with safety latch type hooks to prevent a similar accident occurring again; the press involved in the accident has been modified to prevent steel plates from coming into contact with the machine and jamming; the defendant conducted a toolbox meeting and a full workshop discussion regarding the accident; and, the employees were instructed to be more vigilant when the crane was lifting a load and to remain a safe distance away from the load.

6 Mr Mitchel Milner gave evidence for the defendant. Mr Milner is the managing director of the defendant. In his evidence Mr Milner: · described the changes he had made to the occupational health and safety regime since acquiring the business and becoming managing director in 1997. He estimated the cost of upgrading to be in the order of $200,000;

· described the general safety training and supervision provided to employees at the time of the accident;

· explained how he understood how the accident occurred which involved employees not following correct procedures. In particular Mr Milner referred to Mr Hinke's contrariness in abiding by safety rules and his reluctance to adopt a particular method for slinging loads of steel plate;

· described the steps he has taken after the incident to ensure it does not happen again;

· stated that the defendant takes its occupational health and safety responsibilities very seriously and remains committed to trying to improve safety issues in the workplace on a continuing basis;

· provided some limited information regarding the financial position of the company.

7 Also in evidence were a bundle of photographs showing various equipment relevant to the incident, a statement of prior convictions indicating the defendant had no prior convictions, a witness statement of Michael Hinke taken by Inspector Clark on 23 August 2000 and drawings by Inspector Clark showing how the incident occurred.

8 Ms J Fredman of counsel appeared for the prosecution. Ms Fredman's submissions may be summarised as follows: · It was conceded that the plea of guilty was entered at the earliest possible opportunity and, therefore, a substantial discount should apply.

· The defendant has no prior convictions. The maximum penalty is $550,000.

· The primary factor to be considered is the objective seriousness of the offence.

· The accident was caused by two factors: firstly, the hook attached to the holding clamp was slung the wrong way allowing the hook to slip out when the plate jammed in the press; secondly, the plate was too wide for the press.

· A relevant consideration in relation to the objective seriousness of the offence was that the defendant had been put on notice of the potential problem of plate being too wide for the press. A further relevant consideration is that the defendant was aware of Mr Hinke's lack of regard for safety and his contrary nature. Given this awareness the defendant failed to take proper steps to prevent the accident occurring.

· Specific deterrence is relevant. The defendant remains an employer of 18 employees.

· Whilst the defendant has taken commendable steps to improve its occupational health and safety systems, the obligation on an employer under the Act is to be proactive and not reactive.

· The defendant has fully cooperated with the WorkCover Authority.

· The defendant is not a one-person operation but a reasonably sized employer of 18 employees.

9 Ms C Ronalds of counsel appeared for the defendant. Ms Ronalds summarised the relevant legal principles in a written submission and supplemented those submissions as follows:

· Given the early plea the highest possible discount should be afforded the defendant.

· The defendant was aware of the potential for steel plates to become jammed in the press but the managing director took positive steps to avoid that occurring including instructing the supplier as to the acceptable width of the plate and instructing Mr Hinke to measure the plate before it was placed in the press. Through a sequence of unfortunate events the accident occurred in any event and the defendant pleaded guilty. But it was a one-off occurrence and specific deterrence should not be a significant consideration.

10 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 plea of guilty by the defendant was properly made and I enter a verdict accordingly.

11 In WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 at par 19 and after referring to Benbow v Converquip Pty Ltd [2001] NSWIRComm 85 at par 42, WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at pp 185-187 and Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 at par 82, Hungerford J summarised the proper approach to be taken to sentencing as follows: 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.

12 Essentially the offence in this matter involved a failure on the part of the defendant to ensure a safe system for the lifting and movement of heavy steel plates. It seems to me that such work, as it was performed at the premises of the defendant, was inherently dangerous given that workers would be underneath the steel plate as they sought to position it in the press. The carrying out of such work, in my opinion, required particular care to be exercised by the employer to ensure that it was carried out safely and without risk to health.

13 Despite the inherent danger, the defendant failed to provide adequate training, instruction and supervision to employees carrying out the operation and failed to provide adequate equipment to carry out the operation safely. Whilst it would appear that the workers were experienced, the defendant allowed them to avoid using a safer method to sling steel plate and allowed them to become at best blasé and at worst careless in carrying out the operation. The workers allowed the plate to become jammed, placed the lifting hooks in the plate clamp the wrong way and were underneath the plate as it was being placed on the press. With proper training, instruction and supervision these unsafe practices would have been prevented from developing.

14 Mr Milner said in his affidavit that Mr Hinke "had always displayed an approach to his work which showed a reluctance to accept guidance and direction about something he considered was his responsibility. This approach carried over into his approach towards safety issues." Mr Hinke was aware of the capacity for steel plate to become jammed in the press. Whilst Mr Hinke measured the particular steel plate in question, it was at the borderline of becoming jammed but he proceeded in any event. Knowing Mr Hinke's propensity to do things his way, regardless of safety considerations, it was incumbent on the defendant to take concrete steps to ensure that Mr Hinke's involvement in the lifting and movement of steel plate was safe. Merely asking Mr Hinke to measure the plate was not a sufficient precaution.

15 The risk to safety was readily foreseeable. Mr Milner said in his evidence that on a previous occasion when plate jammed he suggested an alternative method of slinging but in reliance on the skill and experience of his operators in using the existing method he did not insist on that method being adopted. The suggestion of the alternative slinging method could only have been for the purpose of ensuring that the lifting hooks did not fall out of the lifting clamp.

16 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant, in my view, to assessing the seriousness of the offence in this case: see Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. In this case there were reasonably straightforward steps available to the defendant to remedy any defects in its system of work in lifting and moving steel plate. This involved fitting brackets on the framework of the press and acquiring a roller bed so that the plates are now lowered into a horizontal position before being inserted into the press. The defendant also obtained a different type of safety latch to fit to the lifting hooks.

17 In Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No. 1214 of 1990, 30 June 1992 at 9); the Full Court stated: The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence. The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously 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.

18 As to the gravity of the injuries to Mr Tammjarv they were serious enough but it is not beyond contemplation that he could have been killed.

19 In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in Walco Hoist Rentals at 185-186: The 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 the Court is thus 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 penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council 90 IR 397 at 407 - 408.

21 I consider that the offence was a serious one but it was not a case of an employer completely ignoring a known and apparent danger or having no regard to appropriate occupational health and safety standards in the workplace.

22 In relation to deterrence, the associated principles were discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. 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. As to specific deterrence, the defendant has taken steps to avoid a recurrence of the risk. Moreover, the defendant has a good safety record and the incident giving rise to the charge in these proceedings would appear to be more of an aberration than part of any chronic safety problem. Whilst I have had regard to the need for specific deterrence it has not figured prominently in my consideration as to penalty.

23 There are a number of subjective factors to be taken into account in sentencing. These factors are: 1. The defendant pleaded guilty at an early stage. 2. The defendant cooperated with the prosecutor in his investigations. 3. The defendant has taken steps to ameliorate the particular risks that were given rise to the charge in this matter. 4. The defendant is committed to an ongoing program of occupational health and safety improvement. 5. The defendant has no prior convictions.

24 In considering a just and appropriate penalty in this case I have considered the objective seriousness of the offence as well as subjective factors including the steps taken by the defendant to remedy the deficiencies in its system of health and safety thrown up by the incident giving rise to these proceedings, cooperation with WorkCover, the utilitarian value of an early plea of guilty, the defendant's good safety record and the defendant's ongoing commitment to occupational health and safety.

25 In all the circumstances I would assess an appropriate penalty at $140,000. R v Sharma [2002] NSW CCA 142 declared that, notwithstanding the High Court's decision in Cameron v The Queen [2002] HCA 6, R v Thompson; R v Houlton (2000) 49 NSWLR 383 to be still in full force and effect and it, therefore, must be followed.

26 In the guideline judgment of R v Thomson; R v Houlton, Spigelman CJ (with whom Wood CJ at CL, Foster A-JA, Grove J and James J agreed) concluded at 419 in pars [160] and [162]): (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. ... ... The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. In so far as existing sentencing practice has been to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, such a practice remains appropriate.

27 Given the early plea of guilty I would allow a discount of 25 per cent with a further discount of 10 per cent for the other subjective factors leaving a penalty of $91,000. Orders

28 The Court makes the following orders: 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 $91,000 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, as assessed.

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