Inspector Cook v SAE Investments Pty Ltd and Scott Edwards

Judgment 1These are prosecutions brought by the prosecutor, Inspector Sharon Cook of the WorkCover Authority of New South Wales, against two defendants, SAE Investments Pty Ltd ("SAE") and Scott Ashley Edwards, alleging breaches by each of them of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The proceedings are constituted by amended applications for order that were filed in Court at the commencement of the sentencing hearing. The defendants had previously indicated to the prosecutor that, upon the amendments being made by the Court, they intended entering pleas of guilty. This judgment is concerned only with the question of penalty. 2The proceedings arise out of an incident that occurred on 17 September 2007 at residential premises at Yowie Bay. On this occasion a vehicle operated by SAE, which was used for the delivery and pickup of rubbish skips and which had been parked on a steep incline, moved causing serious injuries to the driver who at the time was standing behind it. 3The offence with which SAE is charged is a breach of s 8(1) of the Act, which is in the following terms: 8 Duties of employers (1)Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a)ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b)ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c)ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d)providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e)providing adequate facilities for the welfare of the employees at work. 4Mr Edwards is charged with a breach of the same provision arising out of the same incident because, by reason of s 26 of the Act, he becomes guilty of the same offence, being a director of SAE. Section 26 is in the following terms: 26 Offences by corporations-liability of directors and managers (1)If 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, is taken to have contravened the same provision unless the director or person satisfies the court that: (a)he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b)he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2)A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3)Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4)In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 5I should state at the outset that the amended application for order filed against Mr Edwards refers to an earlier incident occurring on 31 August 2007. That incident is not referred to in the charge brought against SAE, and accordingly cannot found any offence against Mr Edwards by reason of s 26 of the Act. Furthermore, none of the documentation tendered in the proceedings refers to the earlier incident as anything other than by way of background, and I propose to ignore it save for considering it on the basis of background material only. 6It is sufficient to set out only the particulars of the charge brought against SAE because they are, relevantly, identical to those that apply in the case of the prosecution against Mr Edwards. SAE was charged with failing to ensure the health, safety and welfare at work of all of its employees and in particular Justin Hicks contrary to s 8(1). The particulars of the charge are: The particulars of the risk are that: (a)The risk was the risk of a skip bin delivery vehicle slipping and striking or crushing people while it was being used to deliver and/or retrieve skip bins. The particulars of the acts or omissions in failing to eliminate the risk are that: (b)The defendant failed to ensure there was a safe system of work for the delivery and/or retrieval of skip bins at the premises in that: (i)the in cabin controls for the West trans equipment telescopic arm skip loader were not operational; (ii)insufficient braking mechanisms or equipment, such as at least two wheel chocks, were provided for the vehicle in circumstances where the steep gradient of the driveway at the premises required the vehicle's rear stabiliser legs to be fully deployed rendering the park brake ineffective and the operator's requirement to use the external controls for the West trans equipment telescopic arm skip loader resulted in the operator not being in a position to operate the foot brake; and (iii)insufficient personnel were allocated the task in that one person could not operate the braking mechanisms required to stabilise the vehicle on the steep gradient of the driveway and the external controls for the West trans equipment telescopic arm skip loader simultaneously. (c)The defendant failed to fix the in cabin controls of an International ACCO 2250E vehicle with attached West-Trans Equipment Telescopic Arm Skip Loader System, registration number YXC 936 ("the vehicle"), used by its employees subsequent to difficulties with the vehicle being experienced by Justin Hicks on 31 August 2007, whilst performing the work of lifting of skip bins at the site. (d)The defendant failed to ensure that the vehicle's in-cabin hydraulic controls were operating properly so as to allow its employees and in particular Mr Hicks to perform the work of lifting and placing skip bins whilst positioned inside the cabin of the vehicle and therefore the defendant required the employees to operate external controls whilst standing in an unsafe position. (e)The defendant failed to provide Justin Hicks with adequate information, instruction and training in relation to the operation of the West-Trans Telescopic Arm Skip loader system attached to the vehicle when that attachment was used for the purpose of lifting and placing skip bins including failing to provide an operating manual for this equipment. (f)The defendant failed to provide Justin Hicks with adequate information, instruction and training in relation to safe operating procedures for the delivery and retrieval of skip bins that ensured that he received training in relation to procedures to be followed for the delivery and retrieval of skip bins if the in cabin controls of the vehicle were not operating in circumstances of a delivery and or retrieval at a steeply sloping site. (g)The defendant failed to provide employees, and in particular Justin Hicks with direct supervision in respect of delivery and retrieval of skip bins. (h)The defendant failed to undertake a risk assessment of the task of delivery and retrieval of skip bins at the premises, including loading and unloading skips bins, working on slopes or chocking wheels which identified the hazards associated with this activity and the means by which the risk could be eliminated at this site. As a result of the defendant's failures employees and in particular, Justin Hicks, were placed at risk of injury. 7An agreed statement of facts was filed, which, save for certain irrelevant material that has been omitted, is in the following terms: (1)At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. (2)At all material times SAE Investments Pty Ltd (ACN 116 465 322) was a corporation whose registered office is situated at Laidler Aldred Matthews & Walker Pty Ltd, Level 1, 1015 Old Princes Highway, Engadine in the State of New South Wales ("SAE"). (3)At all material times Scott Ashley Edwards of [details omitted], Caringbah in the State of New South Wales was the sole director of SAE. (4)At all material times SAE conducted its business at premises located at [details omitted], Caringbah in the State of New South Wales in the State of New South Wales and was an employer. SAE had a waste-sorting yard at 27 Richlands Street, Kingsgrove in the State of New South Wales ("the Kingsgrove yard"). SAE (5)At all material times, SAE Investments Pty Ltd ("SAE") was a corporation trading as Blue Heeler Bins & Dumpers Handy Bins. SAE undertook the business of waste removal. This involves skip bin delivery and retrieval, sorting of waste and the disposal of waste and recyclables at council and privately owned facilities. SAE commenced operation in September 2005. (6)On 17 September 2007, SAE employed five people, including three truck driver/skip loader operators and two labourers to sort waste at the Kingsgrove yard. Since the incident the waste-sorting yard at Kingsgrove has ceased operation due to the expiration of the premises lease. (7)Mr Justin Hicks ("Mr Hicks"), a 33 year old full-time driver/operator with SAE commenced employment approximately five months prior to the incident on 17 September 2007; and has not returned to work. Mr Hicks worked approximately 40 hours per week from Monday to Friday and on occasion he worked overtime on a Saturday. SAE does not have a documented contract of employment or a documented position description for Mr Hicks. Mr Hicks' duties with SAE included truck driver/operator associated with skip bin delivery and retrieval, sorting of waste at the Kingsgrove yard and disposing of waste and recyclables at council and private facilities. Mr Hicks holds a current NSW Heavy Vehicle Drivers Licence No. [details omitted], required as a provision of his employment with SAE. Mr Hicks operated tipping vehicles and furniture removal vehicles for approximately 10 years prior to commencing employment with SAE. Mr Edwards advised that Mr Hicks had an excellent driving record, obtained from the NSW Roads and Traffic Authority prior to commencement of his employment with SAE, and said he was a very cautious operator. (8)Mr Paul Hopper ("Mr Hopper") was full-time driver/operator with SAE and provided training and instruction to Mr Hicks. The Skip Loader (9)SAE owned a vehicle with registration YXC-936, a 1992 International ACCO 2250E (TARE: 11020 kg) (GVM: 23500 kg) ("the vehicle"). The previous owner had converted the vehicle into a skip loader in 2003 by fitting it with a West-Trans Equipment Telescopic Arm Skip Loader (Model MXS 150). The vehicle has two braking systems available to the operator including a park brake which activates the brakes for the rear wheels only, and a foot brake which actives the brakes for all wheels. (10)The vehicle has two-rear stabiliser legs that are fitted with wheels approximately 150 mm wide. They are used for levelling the vehicle on uneven surfaces and also prevent the cabin of the vehicle from lifting when bins are being tipped. When fully deployed the stabilisers legs have the ability to raise the rear wheels off the ground approximately 150 mm, rendering the park brake ineffective. (11)The MXS 150 skip loader was fitted to the vehicle with two sets of hydraulic controls, including an in cabin control located on the left of the drivers seat (not operational on the day of the incident). External hydraulic controls were located on the driver's side of the vehicle above the fuel tank. (12)SAE vehicles are maintained by Blue Sky Automotive (ABN: 24 001 537 668). The site (13)... (14)... (15)Mr Scott Dempsey ("Mr Dempsey"), Sole Trader, was engaged by Mr Ford to provide building advice for the site. Mr Dempsey was a friend of Mr Ford and had built Mr Ford's previous family home. (16)... (17)On 20 August 2007 SAE entered into a verbal agreement with Mr Dempsey to service the site with 6 m skip bins for the duration of the demolition and construction phases. SAE did not complete a risk assessment of the site prior to commencing delivery to the agreed location at the bottom of the driveway. It is unclear who made the first delivery to the site on 20 August 2007, however Mr Hicks serviced the site on all remaining occasions, 21 August, 31 August, 12 September, 15 September and 17 September 2007. The Driveway (18)The title to the driveway at the site is owned by the adjoining property, [house number omitted] Attunga Rd, with [house number omitted] Attunga Rd having a right of carriageway over the driveway. Prior to the commencement of building works Mr Ford entered into a verbal agreement with the owner of [house number omitted] Attunga Rd regarding housekeeping of the shared driveway and liability for damage. (19)The driveway access to the site (including the shoulders) is approximately 70m (length) x 3.5m (width) x -20.9% (gradient). The slope of the driveway at the site was surveyed at a gradient of -1 in 4.8 or -20.9% at its steepest point. This gradient exceeds Sutherland Shire Council requirements for design of domestic driveways under AS/NZS 2890.1:2004. The Incident on 31 August 2007 (20)On 31 August 2007 Mr Hicks was instructed by SAE to complete a skip bin change over at the site. This involved the retrieval of one full 6 m bin from the bottom of the driveway and the delivery of an empty 6 m bin. Mr Hicks reversed down the driveway at the site with the empty bin on the back of the vehicle. The full bin was lifted off the ground and placed into the empty bin on the back of the vehicle. The two combined bins were then lifted back to the ground. The full bin was then lifted and placed into the rear of the vehicle. (21)Mr Hicks had difficulty lifting the full 6 m bin off the ground with the vehicle in the first instance. When he was operating the external hydraulic controls to lift the bin, the vehicle rolled back over the rear wheel chock and damaged an adjacent brick conveyor. (22)Mr Dempsey observed the difficulty Mr Hicks was having and assisted him by sitting in the cabin with his foot on the brake. This engaged the front wheel brakes in addition to the rear wheel brakes to secure the vehicle so Mr Hicks could safely complete the aforementioned process. Mr Hicks said he would have been capable of achieving this by himself had the in-cabin hydraulic controls been in working order. (23)Mr Hicks had difficulty driving the vehicle to the top of the driveway on that occasion. The vehicle was rolling backwards due to the heavy bin load, an air leak in the brakes and the steep incline. Mr Hicks reported this to Mr Edwards, who subsequently discussed it with Mr Dempsey and Mr Ford. (24)A new agreement was made between Mr Edwards, Mr Ford and Mr Dempsey following the incident on 31 August 2007 to reduce the size of the skip bins down to 4 m, that bins were not to be overloaded, that wheel chocks must be used on the vehicle, and to create an exclusion zone in the building and behind the vehicle during all skip bin change overs. The location of the skip bin was not changed. (25)Following this incident no risk assessment was carried out by SAE of the driveway. The Incident On 17 September 2007 (26)On Monday 17 September 2007, at approximately 7:00am, Mr Hicks arrived at the Kingsgrove yard to pick up the vehicle. At approximately 12:00pm Mr Hicks arrived at the site to complete a skip bin change over. This involved the retrieval of two full 4 m bins from the bottom of the driveway and the delivery of one empty 4 m bin. (27)Mr Gaby was the only person at the site when Mr Hicks arrived. Mr Gaby said he was demolishing the internal stairs of the building with a jackhammer when he heard a vehicle arrive. He walked up the stairs and saw the vehicle reversing down the driveway before resuming his work. Mr Gaby did not leave the 'exclusion zone' in accordance with the new agreement. (28)Mr Hicks stated the bottom end of the driveway was covered with a layer of dirt, gravel and builders rubble. There was a temporary wire mesh fence that provided edge protection to an excavated pit approximately 15m (length) x 3m (width) x 3m (depth) located between the end of the driveway and the site. Mr Hicks said the two full 4 m bins were positioned directly in front of the temporary fence. (29)On arrival Mr Hicks unloaded the empty 4 m bin from the back of the vehicle and placed it on the road in front of the house at [house number omitted] Attunga Road. He reversed down the driveway approximately 50m, stopping on one occasion for about one minute to let the brake pressure build up. Mr Hicks said the brakes were squealing and slipping due to the combination of an air leak and pressure due to the steepness of the driveway. (30)Mr Hicks retrieved the two full 4 m bins, one at a time, located at the bottom of the driveway and unloaded them onto the road in front of [house number omitted] Attunga Road. He then loaded the empty 4 m bin onto the back of the vehicle and reversed it back down the driveway. Mr Hicks, as he had done previously, positioned the vehicle so the stabiliser leg wheels could be placed in a section of uncovered drain along the driveway. He decided this was safer than positioning them on the slippery concrete. (31)Mr Hicks left the engine running, activated the handbrake, placed the transmission in neutral and turned the power take off unit on. He unloaded the empty skip bin onto the ground in front of the temporary fence. This placed the vehicle approximately 61m down the driveway, which according to the survey report was the steepest part of the driveway. (32)At approximately 12:30 pm Mr Hicks was packing up the stabiliser legs on the vehicle after completing a skip bin change over on the driveway of the site. (33)The in cabin controls were not operating. (34)When packing up the main arm and stabiliser legs, Mr Hicks was standing on a sheet of bond-deck (building material) in a space of approximately 1m between the vehicle and the boundary fence. Mr Hicks recalls that his hand was placed on one of the hydraulic levers when the vehicle started to move. (35)The vehicle moved very quickly and subsequently crushed Mr Hicks against the boundary fence. A screw approximately 5mm x 20mm that protruded from this section of timber fence was partially covered with a serum coloured substance after the incident. The screw is the most probable cause of the deep laceration to Mr Hicks' right arm. (36)The temporary fence was knocked over the edge of the excavated pit by the empty 4 m bin, which was being pushed by the vehicle. The 4 m bin impacted into the exterior brick wall of the building at [house number omitted] Attunga Road, collapsing adjacent courses of laid brick. The bin came to rest on top of sections of bond-deck sheeting, timber pallets and a white conduit attached to a length of orange conduit. (37)With the motor still running, the rear of the vehicle came to rest against the 4 m bin protruding out from the brick wall. The two rear wheels of the vehicle were partially over the edge of the driveway. The hydraulic arm was in the drive position and the rear stabiliser legs were extended. (38)Mr Hicks managed to shuffle a couple of metres up the driveway, before lying down and calling out for help. (39)Ms Carolyn Gillon ("Ms Gillon"), a registered nurse residing at [house number omitted] Attunga Road, heard a loud noise followed by screams and when she looked outside her bedroom window onto the driveway, she saw a distressed Mr Hicks standing in front of the vehicle. Ms Gillon instructed a plumber working at her house to call an ambulance while she proceeded to attend to Mr Hicks. (40)Mr Gaby was still working in the stairwell of the building at the site when he heard a crash and saw bond-deck sheets going up in the air. He said he immediately knew what had happened and ran outside where he heard screaming. He looked for Mr Hicks in the excavated pit but couldn't see him. Mr Gaby climbed over the fence to get past the vehicle and saw Mr Hicks lying on the driveway being aided by Ms Gillon. (41)... The Injured Worker (42)Mr Hicks' injuries included a grade three liver laceration, deep laceration to the right shoulder and arm, severed right ulna nerve, fractured right ribs, pulmonary contusions, fractured right scapula, fractured right patella, lacerations and abrasions to the face, arms, abdomen and legs. (43)Mr Hicks underwent a surgical operation to repair the severed nerve in his right upper arm and treat the lung collapse. As at 1 July 2008 Mr Hicks was having ongoing medical treatment, which included physiotherapy for his right arm once a week, pain medication twice daily and regular review by a hand surgeon. (44)On 14 May 2008 Mr Hicks was certified fit for suitable duties for 4 hours x 3 days per week, however he has not returned to work. The rehabilitation company, RIM, is pursuing vocational re-education for Mr Hicks under section 53 of the Workplace Injury Management and Workers Compensation Act 1998. System Of Work Prior To The Incident (45)Following the first incident on 31 August 2007 Mr Edwards said he assumed Mr Hicks was over extending the stabiliser legs, and was of the opinion operator error caused the vehicle to roll backwards. Mr Edwards did not have the brakes tested or the in-cabin controls repaired after the first incident. Mr Hicks' competence as a driver/operator was not re-assessed nor was he provided additional training by SAE after this occasion. (46)SAE were aware of the industry association representing waste and recycling, the vehicle manufacturing company, the WorkCover Authority NSW and their respective roles. However, following the incident on 31 August 2007, SAE made no effort to contact the aforementioned regarding industry standards for managing risk associated with the waste contractors and recycling industry. (47)Following the second incident on 17 September 2007 the NSW Police Engineering Investigation Section examined the vehicle. The findings indicate that an air leak was detected at the 1st drive axle, nearside service brake chamber, and that the vehicle was capable of moving in forward and reverse when the accelerator was depressed while the park brake was applied. The Police investigation found that the hydraulic legs were correct in operation and when lowered to their full extent were capable of lifting the entire two rear axles between 10cm and 15cm off the ground. If parked on an incline, and the legs are lowered to an extent that the rear axles begin to lift from the surface, this would, coupled with the rollers fitted to the bottom of these legs, negate the effect of the park brake and allow the vehicle to roll. (48)Workcover investigations found that the in cabin controls could not be used to load or unload a skip bin. (49)SAE had not undertaken a risk assessment in relation to loading and unloading bins, working on slopes or chocking wheels. (50)West-Trans Equipment, the manufacturer, supplier and fitter of the MXS 150 Telescopic Arm Skip Loader fitted to the vehicle, had a documented manual for the attachment. The manual provides information on the risks associated with the stabiliser legs. The control measures rely on instruction, training and wheel chocking devices. Mr Edwards advised he had not seen the West Trans Equipment Operators and Maintenance Manual for Telescopic Arm Skip Loaders. (51)SAE did not have a safe system of work for loading and unloading skip bins, working on slopes or chocking wheels prior to the incident. The operating procedures varied amongst employees. SAE knew the risks associated with over extending the stabiliser legs and provided its driver/operators a wheel chock as the only means of securing the vehicle on an incline, which proved ineffective due to the site-specific working environment. (52)SAE did not have a system in place to control the risk of incidental movement of the external hydraulic controls during access and egress onto the tray of the vehicle. This was achieved by using the fuel tank located immediately below the hydraulic controls as a stepladder. This process occurred approximately 5 - 30 times per day. Training and supervision (53)SAE did not have a structured or consistent induction training program for new employees. The induction competency assessment was based on whether Mr Hicks felt he was competent and comfortable doing the job. SAE did not provide refresher training or review the competency of its employees. (54)SAE had provided several days of induction training for Mr Hicks with Mr Hopper in his vehicle, servicing sites including a very steep site at Sylvania. Mr Hopper provided Mr Hicks with the induction training. Mr Hopper mostly used the in-cabin controls when loading and unloading bins, especially when working on slopes so the foot brake could be used. Mr Hicks was not able to follow this process after training as the in-cabin controls in the vehicle he was instructed to use (YXC 935) were broken and never fixed. (55)SAE did not provide adequate supervision to Mr Hicks when servicing sites. Due to the autonomous role of the driver/operators, supervision was only provided when Mr Edwards and the other employees were together at the Kingsgrove sorting yard. The responsibility for traffic management and the safe delivery and retrieval of the bins was left to Mr Hicks. (56)SAE had an ad-hoc consultation process in place where employees were encouraged to contact Mr Edwards and talk through any problems they encountered prior to the incident. The process was not documented. Maintenance of Plant (57)SAE did not routinely service its vehicles, with the exception of oil changes. All other mechanical items were repaired ad-hoc. Employees either contacted Mr Edwards directly if they had a problem or took their vehicle directly to Blue Sky Automotive, mechanic, if the hazard involved a defect notice or required immediate maintenance. It is unclear who was responsible for greasing the hoists and unclear how often that took place. (58)Records obtained from Blue Sky Automotive by WorkCover indicate Mr Hicks' vehicle was not serviced between 31 August 2007 and the incident on 17 September 2007. System Of Work Following The Incident (59)Inspector Cook issued improvement notices following the incident on 17 September 2007 in relation to a number of matters including developing and maintaining a safe system of work and conducting risk assessments. SAE complied with all notices. (60)SAE developed a Safe Working Method Statement (SWMS) that incorporated securing plant on slopes and onsite hazard control. The control method to secure vehicles on slopes documented in the SWMS is chocking rear wheels and keeping stabiliser legs approximately one inch off the ground. (61)The following supporting documentation is annexed: (a)14 colour photographs taken by Inspector Sharon Cook on 18 September 2007 and 2 colour photographs taken by Prasad De Silva on 4 October 2007 ; (b)16 colour photographs taken by Constable Lauren McNiece, Miranda Police on 17 September 2007; (c)1 colour photograph taken by Brett Thompson, Wales Truck Repairs on 17 September 2007 (d)Factual Inspection Report of Inspector Cook dated 12 October 2007 in relation to [house number omitted] Attunga Road; (e)Factual Inspection Report of Inspector Cook dated 12 October 2007 in relation to vehicle YXC936; (f)Factual Inspection Report of Inspector Cook dated 25 July 2008 in relation to vehicle YXC-936; (g)Mechanical Engineering Report of Senior Constable Phillip Dowling, NSW Police, dated 2 October 2007 (5 pages including attachments); (h)Engineering Report by Jaya Weerasinghe, Professional Engineer, Hazard Management Group, including photos; (i)West Trans Equipment Operators and Maintenance Manual for Telescopic Arm Skip Loaders (4 2-sided pages); (j)John K Wicks & Associates - Survey Report dated 23 November 2007; (k)Payslips of Justin Hicks for period 24 April 2007 to 18 September 2007 (l)Prior convictions certificates dated 30 May 2011 of: SAE Investments Pty Ltd Scott Ashley Edwards; (m)ASIC company search of SAE Investments Pty Limited dated 21 April 2011 and Personal Name Extract of Scott Ashley Edwards dated 31 May 2011 8There was tendered into evidence for the prosecutor, in addition to the agreed statement of facts, the documentation that is set out in [61] of that document. The Operators' and Maintenance Manual issued by the manufacturer of the vehicle dealing with telescopic arm skip loaders contains details concerning its operation. There is material under the heading "Caution" to the following effect: "If truck is parked on an incline ensure that the truck tyres are not lifted off the ground." There is also a warning that stabiliser legs must always be used when lifting heavy bins. 9Under a heading "Risk Assessment", the manual identified as a hazard the possible lifting of the rear wheels off the ground and its impact upon the effect of the parking brakes. It indicated that there was a serious risk to the public and the operator if this occurred. It stipulated a risk control measure of "Operator training, wheels to be not lifted off ground on sloping surfaces. Front wheels to be chocked if this become necessary to level machine." 10In essence, the circumstances that applied to the use of this vehicle on the day of the incident was that it was parked on a very steep incline. The parking brake operated only on the rear wheels of the vehicle, which had been raised when the stabiliser legs were deployed. Therefore, the parking brake was ineffective. The foot brake operated on all wheels but this had to be controlled by use of the foot brake pedal in the cabin. Because of the defective controls in the cabin, the mechanism used to load and unload skips had to be operated from outside the cabin and from the side of the vehicle, which rendered it impossible to use the foot brake. Furthermore, only one chock had been provided where, obviously, two would have created improved resistance to the vehicle moving on the steep slope. SAE had failed to remedy the defective controls in the cabin, and the driver, although experienced, had not been adequately and appropriately trained. Furthermore, no formal site inspection had been undertaken to create an appropriate assessment of the risk involved in operating the vehicle in the prevailing circumstances. 11Some background information concerning the defendants was provided by Mr Edwards, who represented himself personally and also SAE. He is the sole shareholder and director of SAE. Mr Edwards said that he commenced operating SAE in 2004 employing two fulltime drivers. He employed Mr Hicks on a fulltime basis in late 2006 and understood him to be an experienced driver. At the time of the incident on 17 September 2007, SAE employed five persons. Following the accident, the truck involved was impounded for over three months and the company lost all its current orders and was restricted in booking new orders with the result that it lost about 40 per cent of the business turnover. He said that the business has never recovered from this loss and now employs one casual person, one fulltime employee and himself. 12There is other evidentiary material provided by Mr Edwards to which I shall refer later in these reasons for judgment. 13The starting point for the assessment of penalty is a consideration of the objective seriousness of the offence. There can be no doubt that Mr Edwards, and hence SAE, were aware of the difficulties associated with the particular site at which the incident occurred well before that date and especially following the earlier incident on 31 August 2007. Furthermore, it is clear that the vehicle was defective in the manner that I have earlier described and that this made it difficult to ensure that the vehicle would remain stationary on the steep slope. This situation was compounded by the lack of adequate means of chocking the wheels. Furthermore, as is conceded by the plea of guilty to the particulars of the charge, there was a failure to provide adequate information, instruction and training to the employee concerned about the operation of the loader system and about means that would have avoided the risk of the incident and the serious injuries suffered by the employee. Given all of these circumstances, the risk to the health and safety of the employee to which he was exposed was an obviously foreseeable one. 14I would assess the objective seriousness of the offences with which the defendants are charged as above mid-range. Certainly, they are not at the lower end of the scale of seriousness, nor do they fit within a worst-case category. I note that the prosecutor was in general agreement with this characterisation of the objective seriousness of the offences. 15SAE remains in business and Mr Edwards remains involved in its operations. Accordingly, it is necessary to take into account both the general and specific deterrent effect that the penalties which are to be imposed will have within the transport industry generally and upon SAE and Mr Edwards specifically. 16There are a number of mitigating factors that the Court is entitled to take into account in favour of the defendants when assessing penalty. Each of the defendants pleaded guilty at the earliest appropriate opportunity, they have expressed contrition and remorse for what occurred, they have co-operated with the WorkCover Authority in and about its investigation of the incident and have taken a number of steps to improve the commitment of SAE to its obligations under the Act. This has included revised protocols applying to the use of its vehicles. 17The defendants also adduced evidence concerning their current financial circumstances. 18A financial statement prepared by accountants for SAE indicate that for the nine months commencing 1 July 2010, SAE had an operating loss of $112,000 on gross revenues of $416,000. Even allowing for non-cash expenditure such as depreciation, the company is clearly trading at a loss. This is in addition to the loss for the 2010 financial year of $89,000. 19Total assets as at 31 March 2011 were approximately $290,000. However, this included goodwill of almost $100,000 and plant equipment and motor vehicles of about $130,000. There were trade debtors of $35,000 and about $10,000 cash in bank. As against these assets, there were, however, current liabilities of almost $250,000 including trade creditors of about $79,000, money seemingly owed to the ATO of about $68,000, superannuation payable of $33,000 and about $58,000 owing on credit cards. Furthermore, the company owes Mr Edwards' parents about $290,000 shown in the accounts as a "commercial loan". There are also director's loans shown as being unsecured. The total liabilities are almost $650,000 with a net deficiency of assets of over $350,000. 20The defendants asked that I take these financial circumstances into account when assessing penalty. 21Although Mr Edwards did not make any formal application under s 6 of the Fines Act 1996, I regard the Court as being bound by that provision to take the defendants' capacities to pay into account in any event. Section 6 of the Fines Act is in the following terms: 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required 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. 22It has been well established that, notwithstanding the provisions of s 6 of that Act, the penalty must ultimately reflect the objective seriousness of the offence. See Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435 and McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 359 at [22] and following. 23On one view of the financial circumstances of the defendants as depicted in the evidence which I have summarised, there is no capacity to pay any penalty imposed no matter how small. Nevertheless, I propose to ameliorate the penalties that I would otherwise impose by reference to the demonstrated incapacity to pay any fine. I shall also take into account, but to a limited extent, that the financial circumstances of SAE were affected by the loss of access to the vehicle in question for a period exceeding three months because it had been impounded by the WorkCover Authority of New South Wales. However, as I have previously stated, the penalties must reflect the overall seriousness of the offences. 24I should also make some reference to the relationship between Mr Edwards and SAE. He is, as I have previously indicated, its sole director and sole shareholder. I acknowledge that the Court has before it two separate proceedings and that the legislature has seen fit through the provisions of s 26 of the Act to create a separate and distinct offence in circumstances where the defendant is a director of a corporation which has itself committed a breach of the Act. As against these considerations, both sets of proceedings have arisen out of the one incident. Although Mr Edwards is charged separately and distinctly with the same breach of the Act by reason of s 26, he was the directing and controlling mind of SAE and as sole shareholder any financial burden imposed on the company will translate into a corresponding loss of the value of his shares in that company. Consistent with an approach that I have taken in previous cases, I am of the opinion that justice dictates that some further allowance should be made to Mr Edwards in the quantum of the penalty imposed upon him lest he suffer financially twice by reason of his own personal culpability and the diminished loss of the value of his shareholding in SAE. See Inspector Mayell v Ivanovski and Global Crown Constructions Pty Limited [2009] NSWIRComm 49; Inspector Inspector Rowe v Mintark Pty Ltd and Harvey [2009] NSWIRComm 216; Inspector Webster v AGG Concreting Pty Ltd, Darryl Coffey and Steven Stathis [2009] NSWIRComm 55. 25The maximum penalty that applies to SAE is $550,000 and to Mr Edwards is $55,000. I would assess the culpability of Mr Edwards as being the same as that of SAE, for reasons that are obvious. 26Having regard to all of the matters to which I have referred including the objective seriousness of the offences, the need for both general and specific deterrence, the mitigating factors in favour of each defendant, the provisions of s 6 of the Fines Act and that, as I was informed, prosecution costs are of the order of $25,000, I assess that an appropriate penalty to be imposed upon SAE is $80,000. Having regard to the additional matters that apply to the circumstances of Mr Edwards as shareholder, I intend imposing a monetary penalty upon him of $3,000. 27The prosecutor sought a moiety of the penalties and an order for costs, neither of which were opposed.