Inspector Craig Przibilla v The Roofing Centre Albury/Wodonga Pty Ltd.

PROSECUTOR: Mr M Cahill of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr A Moses of counsel SOLICITORS: Cutler Hughes & Harris

JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No. IRC 6293 of 2003 Inspector Craig Przibilla v The Roofing Centre Albury/Wodonga Pty Ltd Prosecution under s 8(1) of Occupational Health and Safety Act 2000 JUDGMENT [2004] NSWIRComm 227

1 On 15 January 2002, Liam Peter Clayton was working as a trainee factory hand/roll former employed by The Roofing Centre Albury/Wodonga Pty Ltd at its North Albury factory. He had commenced that employment some two months or so earlier. His employer was engaged in the manufacture and supply of roofing products and on 15 January 2002, Mr Clayton was required to make roof battens using the ceiling batten machine. This required heavy coils of metal to be brought to the machine and loaded. Whilst engaged in this process a coil, weighing over 500kgs, which he was rolling by hand to the machine, tipped over and trapped his right leg causing serious injury to his right leg and foot. As a result, Inspector Przibilla commenced proceedings against the employer alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000. After the prosecutor agreed to amend the terms of the Application for Order, the company entered a plea of guilty. These proceedings are concerned with the appropriate penalty to be imposed in the circumstances of this case.

2 The charge as amended alleged a failure by the defendant to ensure the health and safety at work of its employees, including Mr Clayton, in that, while he was rolling a coil of 103mm wide sheet steel (which weighed in excess of 500kgs) across the factory floor from its storage area to position it near a ceiling batten machine for use in the machine to produce ceiling batten, the coil tipped over and his right leg was struck by the coil causing serious injuries to his right leg and foot. Particulars of the offence were that the defendant failed to ensure that the system of work involving the moving of the coil was safe and without risk to health in that: (a) the practice of manually rolling the coil across the factory floor was unsafe; (b) the practice of moving the coil without the aid of any mechanical device was unsafe; (c) the practice of rolling the coil across the factory floor, which was uneven, had an expansion gap and pitting, was unsafe; (d) the defendant failed to conduct a risk assessment in relation to the work of moving the coil; (e) the floor surface contact area of the coil, compared with its height and weight when stood upright, was a contributing factor to the instability of the coil when moved. Further, it was alleged that the defendant failed to provide such information, instruction, training and supervision as may be necessary to ensure the workers health and safety at work in relation to the work of moving the coil.

3 The parties produced an Agreed Statement of Facts which dealt with the following matters of immediate relevance: . . . 5. At all material times, the Defendant conducted its business under the trading name of The Roofing Centre. The Defendant has been incorporated since 1986 and has no prior occupational health and safety convictions. . . . 8. The worker commenced employment with the Defendant in approximately November 2001 as a 17 year old trainee factory hand/roll former. The worker was paid as a "Metal Worker Junior". 9. On 15 January 2002, the worker was required to make roof battens using the ceiling batten machine ("the machine"), which was the sixth roll forming machine in a row of seven roll forming machines located in the steel framing section of the Defendant's premises. 10. The machine was used to form coils of steel into ceiling battens. 11. The machine had the following features: (a) it measured approximately 1.2 metres in height, 500mm in width and 8 metres in length; (b) It was comprised of three main components, namely: (i) the main machine platform with roller section and cut off guillotine; (ii) Run out table; and (iii) De-coiler stand. The de-coiler stand had a hexagonal base, six-strap stand with a rotating and removable mandrel. The mandrel was a steel tri-leg device which was adjustable to accommodate the various sizes of coils placed upon it. The mandrel was 50mm in diameter and 420mm in length and was bolted into position. 12. The process of making battens commenced with a coil of steel being loaded onto the de-coiler stand and then being fed into the roller section of the machine. 13. The coils of steel came in various sizes. Commonly, the coils were approximately 800mm high, 103mm wide and weighed between 300 and 400kgs each. 14. During his first two weeks of employment with the Defendant, the worker operated the machine under the supervision of Mr Ron Collins, the Workshop Foreman. There were no written work procedures and the worker was given on the job, oral directions by Mr Collins. Mr Collins demonstrated how to operate the machine and then supervised the worker operating the machine as he had demonstrated. After the first two weeks of training, Mr Collins would check on the worker to make sure that he was using the machine as he was trained to do. 15. From time to time, the coils of steel used on the machine ran out and had to be replaced. 16. At all material times, the coils of steel were delivered to the premises strapped to wooden pallets. The number of coils strapped to a pallet varied in number from about two to four coils, depending on the size of the coils. The coils were stored in bulk in a storeroom at the premises and a pallet bearing the coils was delivered from the storeroom by forklift to the vicinity of the roll forming machines as and when required. 17. On delivery to the storage area, the coils were placed vertically on the floor by the forklift. Once the coils were upright, the straps holding the coil to the wooden pallet were cut and the pallet removed. 18. When a machine operator required a new coil of steel, the accepted practice involved the operator separating the coils from each other and then the operator manually rolled the selected coil by hand. The operator then inserted a mandrel into the coil and once the mandrel was in place, the coil was lifted on to the de-coiler stand by a forklift truck. Once the mandrel was inserted the coil was lifted on to the de-coiler stand by a forklift truck. 19. On 15 January 2002, the worker attended at the Defendant's premises and was given a worksheet that required him to make six metre long battens on the machine. The worker commenced work at about 7.00am and after making about two or three six metre long battens, the worker noted that he needed a new coil of steel. The worker then went to the area where replacement coils were available for his use. The worker selected a coil of steel that was approximately 1,082mm in height and 103mm in width. The coil had a 500mm diameter centre and weighted approximately 538kgs. The coil selected by the worker was heavier and larger than the most commonly used coils (i.e. 800mm high and 103mm wide and weighing between 300 and 400kgs). 20. The worker started to roll the coil he had selected, manually. As the worker was rolling the coil, the coil tilted and fell towards the worker. 21. The worker observed the coil falling towards him and attempted to jump out of the way. But, the coil fell and struck the worker's right leg before coming to rest on the worker's right boot. 22. Other employees of the Defendant immediately came to worker's assistance. 23. An ambulance was called and the Defendant's employees assisted the worker while he was waiting for the ambulance, wrapping his legs and comforting him. 24. Prior to the subject incident, the Defendant had not conducted a risk assessment with respect to the manual handling/rolling of replacement coils, either with respect to the more commonly used coils (i.e. 800mm high and 103mm wide - with a weight between 300 and 400kgs) and/or with respect to larger coils, such as the coil selected by the worker (i.e. 1,082 metres high, 103mm wide and weighing approximately 538kgs). 25. As a consequence of the subject incident, the worker sustained serious injuries to his right leg and foot. The worker has not returned to work for the Defendant. Rather, he is presently undertaking studies in anticipation of obtaining further employment. 26. Immediately following the incident, the Defendant stopped the manual handling/rolling of replacement coils and introduced a new system of coil handling. 27. At all times, the Defendant fully cooperated with WorkCover in relation to the investigation of the incident involving Liam Clayton and the consequential issues relating to improvement notices.

4 In the prosecution case, the Inspector's factual inspection report, together with ten photographs, was tendered. The report presented details about the nature of the machinery used and the factory complex in which it was housed. The photographs were of assistance in understanding the nature of the machinery used on the day of the incident, and there were several graphic photographs of the extent of the injury to Mr Clayton's right leg.

5 An interview conducted by the Inspector with Mr Clayton was tendered as representing a victim's impact statement. That statement dealt, in some detail, with the circumstances surrounding the accident, the immediate and long term effects of the injury to Mr Clayton's leg, his fears and concerns during the period of recuperation and following, and the manner in which the accident had affected all aspects of his life.

6 For the defendant two affidavits were read. Mr Gavin Jones was one of four directors of the defendant and provided an extensive affidavit. He stated that the defendant was a family business which had been operating since 1986 and he was the managing director, Operations. The defendant operated from three sites with the main site being in Albury/Wodonga, New South Wales. It currently employed 23 employees with the Shepparton site in Victoria operating since 1988 and the Wagga Wagga site in New South Wales operating since 1993. The Shepparton and Wagga Wagga sites each employed between ten and twelve employees.

7 Since 1985, the defendant had employed a very experienced retired person as a consultant who attended the premises one day a week, actively engaging employees in discussion of their work and any problems they were having in the operation of the machinery. There was a general overseeing of the operation by the consultant and observation of the state of the machinery for the tasks to be performed. Safety was one of the matters dealt with by the consultant including any safety concerns experienced by the operators. The consultant held tool box meetings for all factory workers for about half an hour each week. A report form was generated from these meetings reflecting the items dealt with and there would be a report made by the consultant to Mr Jones. A course of action would be agreed between them with a timetable and the nomination of the person to be responsible for each matter for which action was required. Examples of what were referred to as the operational safety and efficiency reviews were provided to the Court. This role continued until 2003 and was then altered when a full time occupational health and safety co-ordinator commenced duties at the factory.

8 Mr Jones gave evidence about a new factory layout which took place in 2001 and the consultation process which involved all employees. It was explained how variations and alterations were made to ensure aspects of the work were performed in a safer manner. At the time of the accident in January 2002, all new operators were trained by the foreman, Mr Collins. They were instructed how to use the machines properly and safely and these instructions took place over the first two weeks of engagement. Following this initial period, Mr Collins carried out supervision to ensure that the machines were being used properly and in accordance with the training given. There was a very good relationship between Mr Collins and the operators and they would wait for his visits to inform him of any safety concerns except those that required immediate attention.

9 Mr Jones set out in detail the features of the factory and the variety of machines used and their particular purpose. He stated that there was no crane at the premises and that all coil handling was done by forklifts including finished product which was removed through the back door by a forklift or on trolleys. Prior to the incident involving Mr Clayton, coil was installed on the roll-forming machines by being moved into position near the machines using a forklift and being stored vertically. When required, the operators would manually roll the coil forward to allow the mandrel and sling to be utilised. There had never been an incident with this method of work prior to January 2002 and it had never been raised as a safety issue by any of the operators prior to Mr Clayton's accident. 10 Immediately following the accident, Mr Collins stopped work on all machines requiring manual handling of coils. After morning tea, Mr Jones gathered all the employees for a meeting and addressed them as to how easily accidents could happen and how there was a need to be very careful at all times. Counselling was offered to those who required it. Mr Jones said he visited Mr Clayton in hospital the day after the accident or about that time. In addition, Mr Clayton's father, who also worked at the factory, was given two days' leave to be with his son. Mr Clayton was visited once by Mr Jones after he left hospital and they spoke to each other on a few social occasions. Mr Jones kept a check on Mr Clayton's progress by speaking from time to time to his father. On these occasions, Mr Jones offered light work to Mr Clayton through his father but Mr Clayton did not take up the offer.

11 On the day of the accident, Mr Jones and Mr Collins discussed how manual handling of the coils could be eliminated from the work method. They agreed that the coils could be stored horizontally rather than vertically, that the coils would no longer be manually rolled into place and that a forklift would be used to push the coil forward until a strong synthetic sling could be inserted into the centre of the coil. This would allow the coil to be lifted into the decoiler stand using the sling and the forklift. All the factory workers were trained in the use of the sling by Mr Collins on the day or a day after the incident. This new system was introduced for a number of the machines. Further, Mr Jones informed the supplier that in future coils weighing over 300kgs would not be accepted.

12 Following the accident to Mr Clayton, there were a number of prohibition and improvement notices served on the company which were promptly attended to by the defendant. An issue raised by Inspector Przibilla concerned the nature of the sling and it was immediately withdrawn from use and replaced by a metal device that had been certified by a qualified engineer. There was full co-operation with the WorkCover Authority on these matters including the investigation of the accident. 13 A number of safety improvements followed. A formal occupational health and safety system was adopted and communicated to all staff by 17 February 2003. A four day occupational health and safety training course run by the Australian Industry Group was held in late February 2003 at the Albury/Wodonga plant, which was attended by the managers and foremen of other plants as well as the Albury plant. At the same time, an Australian Industry Group representative conducted a complete audit of the Albury/Wodonga plant and provided a detailed report making various recommendations which were adopted by the defendant. In addition, guards and cut out switches were installed on all the machines in the factory where none had previously been installed. A welder was engaged for approximately seven weeks to install the guards.

14 In March 2003, a full time occupational health and safety co-ordinator was appointed. That person had previous industry experience and in particular had knowledge of the Dupont Occupational Health and Safety Management system and was based in Albury/Wodonga. This person was responsible for both human resources and occupational health and safety at all of the company's branches. The co-ordinator has since produced an occupational health and safety policy and has been working with Mr Ward to prepare operating procedures for machines used in the factory. It was proposed that these documents would be reviewed every six months. The co-ordinator was responsible for risk evaluation, regularly consulted with operators and suggested methods of safe working. In the few weeks before the hearing, the safety co-ordinator had a system of walks through the factory and staff members were now required to do a walk of any unfamiliar area of the factory once a month with occupational health and safety particularly in mind. Examples of how this method exposed risks was dealt with by Mr Jones. There was a formal, monthly tool box meeting held by the safety co-ordinator and the general manger. Safety is the first agenda item at these meetings. The meetings provide an occasion for the operators to raise safety issues and to have matters of safety discussed.

15 The defendant's financial position was also dealt with by Mr Jones. He described constraints on the company's cash flow and the fact that one of the director/shareholders had asked for his shareholding to be bought out by the other directors. This shareholding had been valued at approximately $270,000 and the remaining directors/shareholders would need to borrow funds externally to buy out this interest. The defendant also had expansion plans including three additional machines on order due to be delivered in 2005. There were plans in the development application to extend the current building to accommodate the new machines and extra stock: the expansion would give the defendant the ability to move existing machinery and stock holdings to make the factory more efficient and safer. Funds to facilitate the expansion would be borrowed externally and would result in the employment of two or three additional full time employees at the Albury/Wodonga factory. This expansion would require borrowings of approximately $1.5 million and would also cover the buy out of the shares.

16 The defendant hoped that expanding its range of products would help protect it from the expected downturn in the building market regionally which was likely to affect its turnover. It was stated that, if a large fine was imposed, the expansion plans could be restricted and the existing operation would be likely to need review with possible down sizing or closure of one of the branches. The Shepparton branch was the smallest and least profitable and might be the prime candidate for closure. This would be an upsetting result and staff would lose their employment. Although not a large employer, the number of staff employed in the region was described as being "not insignificant".

17 Affidavit evidence was also given by Mr Collins, the defendants' foreman. He said he was responsible for training and supervising the factory workers and there were approximately 17 such workers at the Albury plant. He also performed the task of "machine fixer" for the branches and visited those branches approximately once a month to check the machines and to undertake necessary maintenance. These branches had their own foremen.

18 Mr Collins provided training to new employees and instructed them in the use of the machines and how to perform the work safely. This was done over a period of approximately two weeks. During this period, Mr Collins demonstrated how to use the machine and he would then observe new employees in several operations of the machinery until he was satisfied that they were able to use the machinery properly and safely. After initial training, Mr Collins continued supervision of new employees to ensure that they were performing in accordance with their training. This form of observation and correction where necessary was applied to all employees. Employees were encouraged to raise problems or potential problems and to discuss their concerns, although there had been very few problems in the method of operation used by the defendant. By 1994, Mr Collins had undertaken a "train the trainer" course conducted by the Australian Chamber of Manufactures.

19 Since 1995, Mr Ward, as a consultant, had attended the Albury/Wodonga factory on Mondays to meet the factory workers. The employees were encouraged to raise concerns about safety and efficiency or other issues in relation to their employment. When those issues were raised there would be discussion between Mr Collins and Mr Ward and a timetable would be established to address the issue and Mr Collins would undertake any work involved. Mr Clayton's accident had been the only accident of that kind which occurred in the 17 year operation of the defendant.

20 Mr Collins described the method of work and how coils were brought to the machines when required. He confirmed the method of loading the coil on the machine being operated by Mr Clayton at the time of the accident as detailed by Mr Jones. This involved employees manually rolling coil into position when using the ceiling batten machine. Mr Clayton had been instructed by Mr Collins in this work and had been closely supervised by Mr Collins early in his employment.

21 After the accident, Mr Collins had visited Mr Clayton in hospital and had enquired about his welfare when speaking to Mr Clayton's father at the factory. Immediately after the accident, manual rolling and loading of coil was stopped while consideration was given to this part of the operation. Mr Collins later demonstrated to the workers how a strap attachment to forklifts was to be used at all times when loading coils on and off the roll forming machines. The strap was a strong synthetic sling and would prevent the coils from falling. In addition, the coils were to be stored horizontally not vertically. Subsequently, WorkCover issued a prohibition notice in relation to the strap and it was immediately removed and replaced with a metal safety chain and hooks. Mr Collins arranged for an engineer to certify that the new metal device could be used in place of the strap. That certification was achieved in approximately ten days. Another training session was then held for all factory workers in which it was explained to them how to use the device and operate the forklift safely.

22 Mr Collins described how, after this accident, guards and safety switches had been installed on all machines and the steps taken to make the machines in the factory "finger proofed". Formal processes had been introduced to consult employees about safety in the workplace and there was a constant review of safety issues. Mr Collins spoke about the monthly toolbox meetings and the priority given to occupational health and safety. Other steps included the employment of a full time human resources and occupational health and safety co-ordinator and the writing of standard operating procedures for all factory processes. In February 2003, Mr Collins had attended a four day occupational health and safety training course run by the Australian Industry Group at the Albury/Wodonga plant which was attended by foremen from the other branches and a number of senior managers of the defendant. During this course, an Australian Industry Group representative conducted a complete safety audit of the Albury/Wodonga plant.

SUBMISSIONS 23 The prosecutor accepted that the defendant had no prior record and that the maximum penalty available was $550,000. The primary consideration was the objective seriousness of the offence. There were a number of factors that were indicative of the objective seriousness of this offence: (a) there was an obvious and significant risk to safety and the risk was self evident. It was commonsense that a real risk existed that these coils would topple when rolled, especially having regard the nature of the floor contact surface and the height of the coils. Also, the weight of the coils being in excess of 300kgs meant that the coils constituted a significant risk of serious crush injury; (b) there were simple steps available to overcome the risks identified and in fact the defendant took a number of simple and straightforward steps following this accident to address the risks directly raised by it; (c) the result of a coil falling over and striking a worker was likely to be serious. The seriousness of the risk was reflected by the nature and extent of the injuries sustained by the injured worker.

24 In relation to general and specific deterrence, the fact that there had been no similar accident over a period of 17 years was of no assistance to the defendant. The defendant's obligation was always to be "pro active" in ensuring the safety of its employees. Nevertheless, it was conceded that the defendant was entitled to have its good record taken into account in assessing the extent to which specific deterrence was to be reflected in the penalty imposed. 25 The prosecutor also conceded that a plea of guilty was entered shortly after an amendment was made to the Application for Order and that the defendant was thus entitled to consideration with respect to its utilitarian benefit. The prosecutor further accepted that a plea of guilty might attract a greater degree of leniency where the Court was satisfied that the plea of guilty reflected contrition on the part of the defendant. In this case, the defendant was entitled to a discount in respect of its co-operation with the WorkCover Authority in the course of the investigation of the incident and with respect to its plea. Further, as a "first offender", the defendant was entitled to be regarded as a good industrial citizen and entitled to the leniency that is normally extended to an employer who does not have a record of failing to meet its obligations under the Act.

26 In relation to the financial position of the defendant, it was submitted there was no evidence of incapacity to pay. The onus under the Fines Act remained on the defendant to produce cogent evidence of its incapacity to pay in sufficient time to enable the Court to properly assess the evidence if the benefit of the Fines Act was to be provided to the defendant. Even if the Court was satisfied that the defendant's financial circumstances warranted a reduction in the penalty to be imposed, the primary factor in determining the penalty remained the objective seriousness of the offence. Here, the offence reflected a significant failure on the part of the defendant to meet its obligations under the Act.

27 The defendant accepted that there were a number of issues to be taken into account in determining the objective seriousness of the offence namely: the extent to which risk to health and safety was foreseeable and might have been remedied by simple measures; the extent to which the defendant had control over the primary causal factors of the risk; the extent of the defendant's contribution to the relevant detriment to safety (or the contribution to that detriment made by others); the existence of a settled system of work which would have prevented the accident if it had been adhered to, including adhered to by others; and, general and specific deterrence.

28 In this case, the defendant was not aware prior to the accident that the method of installing coil in the roll forming machines presented a risk to the health and safety of its employees: this was confirmed by the affidavit evidence of Mr Jones. It was conceded, however, that the Court would readily find that it was foreseeable that such an incident could have taken place in circumstances where the coils were handled manually when being placed on the roll forming machines.

29 In relation to subjective features, it was submitted that the defendant had entered a plea of guilty at the earliest opportunity and was entitled to consideration for the application of the full measure of discount available in this respect. The defendant's plea of guilty could not be categorised as a simple recognition of the inevitable, particularly in circumstances where a plea of guilty was entered after an amendment was made by the prosecutor to the Application for Order. The plea of guilty spared the prosecution from leading detailed evidence from Mr Clayton in attempting to establish the defendant's guilt and consequentially saved valuable Court time.

30 It was acknowledged that there was co-operation with the WorkCover Authority and an immediate and appropriate response to the accident by the defendant. All work on the manual handling and rolling of replacement coils was stopped and a new method of loading the coil was introduced. The defendant had also taken extensive steps on its own initiative to improve safety at its factory and thus emphasised its commitment to safety. Those steps included the implementation of a formal occupational health and safety system across the business; participation in an occupational health and safety training course; installation of guards and cut out switches on all machines where they did not previously exist; the appointment of a full time health and safety co-coordinator and the commissioning of an audit in relation to occupational health and safety matters at the site.

31 The defendant expressed its contrition for the events that occurred. The defendant's good citizenship was demonstrated by the fact that, as a family business operating since 1986 employing presently some 23 employees, it had no prior health and safety convictions. There had been no other incidents of significance previously in relation to safety in the operation of the plant in a workplace in which there was encouragement given to the workers to consult and discuss their concerns including safety concerns.

32 The defendant pointed to the evidence of the likely consequences of a large fine being imposed but frankly conceded that, while that was a matter required to be taken into account by the Court, it was not a matter to which the Court would necessarily attach significant weight. It was also clarified that there was no suggestion by the defendant of its incapacity to pay.

33 In the course of oral submissions, counsel for the defendant explained that, while it was conceded that this accident was foreseeable and that a weighty coil could fall and injure an employee, the company was not aware that this method of operation would be a risk. When asked why a forklift had not been used to store and install the coil when a forklift was used to store and bring the coil from the storage area to the machine, counsel accepted that method of operation was available but that the coils would have to be stored laying down rather than standing up. It appears that, while the coils were stored standing up, it had simply not occurred to the defendant to lay them down and to further involve the forklift so that it became part of the entire method of storage, carrying and loading of the coil.

34 It was accepted on behalf of the defendant that, up until this accident, the defendant's approach to safety in the workplace could be appropriately described as "low key". That approach however was altered immediately after the accident and the defendant was entitled to some favourable consideration for the improvement in safety and the overall safety plans introduced, along with co-operation afforded to the WorkCover Authority.

35 In what was described as a "formal" application made on instructions counsel for the defendant sought the benefit of s 10 of the Crimes (Sentencing Procedure) Act. In making this submission, it was recognised that for these types of offences it would be a rare case where the application of s 10 would be appropriate. The defendant accepted that the approach in Inspector Stewart v Siemans Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) No 2 [2003] NSWIRComm 45 would be likely to be applied in the circumstances of the present case.

DELIBERATION 36 It is common ground that in this sentencing exercise the starting point is a consideration of the objective seriousness of the offence. While it might be readily accepted that this method of work had operated without incident for approximately 17 years, it is significant that the defendant accepted the foreseeability of a heavy coil falling and injuring an employee while being handled and moved across the factory floor before being installed on the machine. The coils were of varying weight and the defendant appears to have attached no significance to that fact. The coil that fell on Mr Clayton weighed in excess of 500kgs and fell while it was being pushed into place by Mr Clayton - an exercise which required it to be rolled by hand across an admittedly uneven surface. There is frankly something primitive about this method of operation. The only reason the forklift was not used for this part of the task was that the coils were stored in an upright manner rather than being laid down. There was simply no reason at all for an employee to be engaged in physically rolling coils of this size to the machine for the re-loading process. The good fortune of past experience without incident is no substitute for an employer's duty to be pro-active in seeking out and remedying risks and potential risks to safety before an incident forces its hand and requires a proper assessment of the risks involved in the operation being undertaken.

37 There are other worrying aspects of the work method adopted by the defendant which bear upon an assessment of the seriousness of the offence. While the defendant employed people experienced in factory work there was almost nothing by way of a formal system of risk assessment and the laying down of a safe system of work. True it is that an experienced consultant attended once a week and a foreman observed the way in which the work was undertaken on a daily basis. These measures amounted to no more than a "low level" system of safety - a concession properly made by counsel for the defendant.

38 The defendant is entitled to some consideration for the measures quickly taken to address the detriment to safety exposed by this accident but those steps also demonstrate how simple it was to avoid the risk in the first place. I accept the prosecutor's submission that this was a serious breach and that the extent of the injuries suffered by Mr Clayton assist in determining the objective seriousness of the breach. I readily accept that, had Mr Clayton been lucky enough to avoid injury, that fact would not detract from the objective seriousness of the offence: a simple analysis that involves the potentiality for injury of a coil weighing up to 500kgs falling on an employee from an upright position dispels any suggestion to the contrary.

39 Both general deterrence and specific deterrence have a role to play in the assessment of an appropriate penalty in this case. The general nature of this factory operation (apart from its specific product) is to be found across the State. The offence found in this case again underlines the need for employers to be pro-active in assessing workplace risks before the occurrence of an incident or tragic accident. Insofar as specific deterrence is concerned, while the defendant has taken significant steps to implement a safe system of work since the accident, it continues to be an employer of more than 20 people in this industry and the defendant is to be encouraged to continue its efforts to adopt safe working practices well after this case is concluded.

40 In relation to subjective factors, I accept the submissions that the defendant has a good record as a participant in an industry with some hazards associated with its operation and has demonstrated its good citizenship. While it is accepted that this accident was foreseeable and that the defendant had a relatively "low key" approach to safety before the accident, it was not without its own safety systems although their inadequacies were glaringly demonstrated by this particular and totally unnecessary accident. In relation to these matters, the defendant is entitled to a discount of five per cent on the penalty to be imposed.

41 I am in no doubt that this is an appropriate case in which to conclude that the guilty plea entered very shortly after the amendment of the Application for Order is properly to be considered as an early plea. The defendant shall be afforded a discount of 20 per cent in relation to this aspect. The total discount on penalty is therefore, twenty-five per cent.

42 I have considered the evidence, such as it is, and the submissions made on behalf of the defendant in relation to its financial position. As very fairly conceded by counsel for the defendant, this is not a case where there is a claim of incapacity to pay but one where a picture is painted of an employer in regional Australia aiming to increase its productivity and secure a place in a possibly shrinking market in circumstances where a very substantial fine could alter those plans and perhaps threaten, to some minor extent, the amount of employment undertaken by the defendant. While I am prepared to take these matters into account, they are not matters which can be weighed heavily in the balance so as to substantially reduce the penalty to be imposed.

43 I have referred earlier in this judgment to the fact that the prosecutor tendered a victim's impact statement which was in the form of a record of interview with Mr Clayton. In that statement Mr Clayton described in detail the nature of the injury suffered and its effect on his right foot. He had endured excruciating pain at the time of the accident and following the accident had also endured the pain of skin grafts and ten operations. He spoke of his mental anguish and the fear he held of losing his leg - a prospect that remained real for a period of approximately six weeks. Mr Clayton was unable to deal with the thought of returning to this workplace. He now has restricted movement and range of motion in his right ankle and if he sits for long periods his right knee swells and quickly becomes painful. He is unable to stand for long periods and cannot lift loads. He wears orthotics in both shoes and he has to be careful as to which shoes and socks he wears because of their capacity to irritate the skin grafts and scars on his foot. He spoke of the effect on his ability to play sport and spoke of the importance of sport in his life. He referred to having hundreds of physiotherapy and hydro-therapy sessions and specialist consultations too numerous to count.

As has been observed in other cases, a victim's impact statement has an important role in proceedings such as this: it allows the victim in this case to express, in his own words, the many ways in which a simple workplace accident has had serious ongoing consequences. Mr Clayton's statement places before the Court the agony of his personal experience in a way that the formal documents of a prosecution are unable to reproduce. The Court extends its sympathy to Mr Clayton for the injury he has received and the effect the accident has had on his life.

44 Finally, I am unable to accept the defendant's formal application that it should be the beneficiary of an order under s 10 of the Crime (Sentencing Procedure) Act 1999. In my view, none of the circumstances which may lead to the exercise of the discretion in favour of the defendant have been established.

45 Having regard to the matters discussed above, the Court makes the following orders: 1. The defendant is found guilty of the offence under s 8(1) of the Occupational Health and Safety Act 2000 to which it has pleaded guilty in matter IRC No 6293 of 2003. 2. The defendant is fined the sum of $93,750 with moiety thereof to the prosecutor. 3. The defendant is to pay the costs of the prosecutor as agreed or as assessed in accordance with the Rules of the Court.

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