Inspector David Lyons v Duffy Bros Country Fresh

PROSECUTOR Ms P E McDonald of counsel SOLICITORS PricewaterhouseCoopers

LEGAL REPRESENTATIVES: DEFENDANT Mr P Menzies QC and Mr M Papallo of counsel SOLICITORS Joseph D'Agostino

INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 20 May 2002 Matter No IRC 5435 of 2000 INSPECTOR DAVID LYONS v DUFFY BROS COUNTRY FRESH (DARLINGHURST) PTY LTD Prosecution pursuant to s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT 1 The defendant Duffy Bros Country Fresh (Darlinghurst) Pty Ltd was charged with a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act") by the prosecutor Inspector David Lyons, an Inspector with the WorkCover Authority of New South Wales in the following terms: It is alleged that the Defendant, Duffy Bros Country Fresh (Darlinghurst) Pty Limited (ACN 070 278 410), an incorporated company with its registered office located at Level 1, 147 Northumberland Street, Liverpool in the State of New South Wales, an employer, breached Section 15(1) of the Occupational Health and Safety Act 1983 on 13 November 1998 at 17 Spring Street, Chatswood in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees at work, in particular Sabash Madhavan Nair. Particulars of the Defendant's Failure are: (a) The Defendant failed to put in place adequate measures to restrict access by employees at the premises to a fixed platform hoist ("the hoist") and the hoist shaft. (b) The Defendant failed to maintain the hoist and access doors to the hoist in a condition that was safe and without risks to health. (c) The Defendant failed to provide such training and information to employees concerning the safe operation of the hoist as may have been necessary to ensure their health and safety.

2 The defendant pleaded guilty to a breach of the Act in the manner particularised in paras (a) and (b) above, but pleaded not guilty with respect to the breach particularised in para (c) above.

3 Section 15 of the Act is in the following terms: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

4 The prosecutor and the defendant reached agreement about a number of factual matters which agreement was the subject of a "Statement of Facts" filed in the proceedings. These were as follows: 1. At all material times the prosecutor was an Inspector appointed pursuant to the provisions of the Occupational Health and Safety Act 1983 and empowered by section 48 of the Act to institute proceedings in this matter. 2. At all material times the defendant Duffy Bros Country Fresh (Darlinghurst) Pty Limited (ACN 070 278 410) was an incorporated company with its registered office located at Level 1, 147 Northumberland Street, Liverpool in the State of New South Wales. 3. At all material times the Defendant carried out the business of retail supply of fruit and vegetables at a retail shop located at 17 Spring Street, Chatswood in the State of New South Wales ("the premises"). 4. At all material times the Defendant employed Sabash Madhavan Nair ("Nair"), 31 years, as a labourer at the premises. 5. On 13 November 1998 Nair was assisting the Defendant's shop manager to move a garbage bin from the roadway into the loading dock area at the premises. Nair fell backwards approximately 2.7 metres down the hoist shaft from the loading dock level to the coolroom level sustaining spinal injuries. The bin fell down and landed on top of him. Nair was taken by ambulance to Royal North Shore Hospital. 6. On 25 January 1999, the Prosecutor attended the site and observed as follows: (a) The scene of the accident was located in the loading dock area of the premises where there was a Fixed Platform Hoist, the only one of its kind; (b) The hoist travelled via the shaft from the loading dock ground level down to the coolroom level; (c) In both the loading dock area and the coolroom area the hoist enclosure measured 1800mm long by 1800mmwide by 2250mm high and was fitted with a metal, mesh roller door; (d) The hoist was electronically powered and hydraulically operated; (e) On the side wall of the hoist was a sign stating "SAFE WORKING LOAD 1500KG NO PASSENGERS ALLOWED"; (f) Attached to a post, adjacent to the hoist at the lower coolroom level, were signs stating "WARNING UNAUTHORISED PERSONS ARE PROHIBITED FROM OPENING THE HOIST", "PERSONS AUTHORISED MUST FOLLOW SAFETY PROCEDURES AT ALL TIMES", "SAFETY DOORS ARE TO BE KEPT DOWN AT ALL TIMES EXCEPT WHEN PLACING ITEMS TO BE TRANSPORTED". "FAILURE TO COMPLY WILL RESULT IN INSTANT DISMISSAL". (g) On the loading dock level, on the left hand side pf the hoist, at a height of 1400mm above floor level was located a metal box containing the controls for the hoist. These controls consisted of a green button over a red button; (h) On the coolroom level the controls for the hoist also consisted of a green button over a red button. These controls were located on the right hand side of the hoist at a height of 160mm above ground level; (i) At the time of inspection the hoist was fitted with proximity switches at both the loading dock and coolroom levels; (j) The distance from the loading dock floor level to the coolroom level was 2700mm; (k) At the time of inspection the hoist was not fitted with operational mechanical interlocks that prevent the roller doors of the hoist from opening when the platform was positioned at the corresponding floor level; (l) At the time of inspection the roller door of the hoist at the loading dock level could be opened fully whilst the hoist platform was positioned at the lower coolroom level; (m) The loading dock floor and the coolroom floor outside the entrances to the hoist were concrete and the lighting of the area was satisfactory. 7. As a result of his inspection, the Prosecutor found as follows: (a) The accident occurred as Nair was assisting the Defendant's shop manager to bring a garbage bin into the loading dock area of the premises; (b) Nair fell approximately 2.7 metres down the hoist shaft from the loading dock level to the coolroom level; (c) At the time of the accident the loading dock level access door to the hoist was in the open position and the hoist platform was positioned at the lower coolroom level; (d) At the time of the accident the hoist was not fitted with devices to prevent the doors of the hoist from being opened except when the hoist platform was at the corresponding level and this hazard had existed since at least the end of November 1997; (e) There were no written operating procedures for the hoist at the time of the accident; (f) Approximately 10 weeks after the accident the loading dock level access door to the hoist could be opened fully while the platform of the hoist was positioned at the lower coolroom level; (g) At the time of the inspection on 25 January 1999, the centrally located hinge pin of the scissor mechanism of the hoist was partially displaced and both the front and rear left hand lower corner pin housings were enlarged so as not to provide a "snug" housing for the pins and the hoist pit contained approximately 200mm of water; (h) The Defendant failed to put in place adequate measures to restrict access by employees at the premises to the hoist and the hoist shaft.

5 Evidence given by James Whitfield the General Manager of a company within the Duffy Bros group was that the defendant had leased the shop in Chatswood from 1 October 1997, but did not commence trading there until 3 December 1997. One of the matters to be attended to before trading commenced was the overhaul of the hoist situated within the shaft where Mr Nair fell. Some time before July 1997, presumably in anticipation of the lease being signed, Mr Whitfield retained Mr Jim Pereth of Multirig Pty Ltd to inspect the hoist. An inspection occurred on 8 July 1997 as a result of which Multirig Pty Ltd forwarded a quotation to carry out certain work on the hoist including an electrical upgrade with new switches, a mechanical and restructural refurbishment, the installing of new roller doors and the repair of the motor if necessary. Multirig Pty Ltd commenced work on the hoist in about mid October 1997. That company encountered some difficulties in carrying out the work. The nature of the difficulties was technical and not understood by Mr Whitfield. Mr Whitfield said that he told Mr Pereth to do whatever needed to be done to fix it so that the hoist complied with "all safety standards". On 25 November 1997 Mr Whitfield forwarded a facsimile transmission to Mr Pereth stating, inter alia, "We need the hoist operating to WorkCover standards ASAP as the whole shop operation centres around the hoist." Some difficulties were encountered with the presence of water at the bottom of the hoist shaft which are irrelevant for present purposes, other than that these difficulties appear to have been attended to by Mr Pereth. The hoist appears to have been used after the shop commenced trading although not all work was completed prior to that date. Shortly after the shop opened the hoist stopped working and Mr Pereth was asked to rectify the problems. Despite this Mr Pereth failed to attend to the work in a timely fashion. He is alleged to have said to Mr Whitfield at the end of March 1998 that the hoist could be used and that it complied with all safety standards. Some of the work which had been carried out through Multirig had in fact been attended to by Mr Theodore Hatze an electrical engineer carrying on business under the business name Tesla Electronics. In fact some of the original electrical repair work had been carried out by Mr Hatze in November and December 1997. That work had been sub-contracted to Tesla by Multirig Pty Ltd.

6 Electrical switches had been installed on each of the roller doors. They were described as reed switches. These switches had to be in contact with each other before the hoist could be moved either up or down. Contact was only made when the roller doors at both levels were in a shut position so that a reed switch attached to the roller door was in contact with a reed switch attached to the door housing. As it transpired, whilst the installation of these switches precluded the hoist being moved from one level to another, or indeed, being moved at all unless both roller doors were in a closed position, they did not prevent either roller door being opened whilst the hoist was stationary at another level. Accordingly, the installation of the switches did not prevent the roller door of the upper ground floor level being opened whilst the hoist was at the lower level some 2.7 metres below. This was the situation which prevailed at the time that the accident occurred which gave rise to these proceedings.

7 In order to prevent this particular accident it would have been necessary to install an electro magnetic interlocking switch. Such a switch would have prevented a roller door from being opened unless the hoist was situated at the level of that door.

8 Evidence was given by Chin Thanh Nguyen who was the Manager of the Chatswood shop. Mr Nguyen was, from my observations of him giving evidence, able to converse in English and appeared to understand English, but his obvious accent made communication with him difficult. He did not require an interpreter for the purpose of giving evidence, but nevertheless it was obvious that he spoke English as a second language and there were marked communication difficulties.

9 Some time up to a week before the accident Mr Nguyen noticed that one of the switches on the hoist had been broken by a pallet which was being moved. He called the mechanic whom he knew as "Jim" who came out and tried to fix it. The mechanic said that he did not have a spare and that he would tape the switches up and fix them temporarily. The switch in question was the bottom switch at the lower level. Mr Nguyen did not see the mechanic tape the switches.

10 Mr Nguyen could not remember whether the top switch was also taped.

11 The lift mechanic told Mr Nguyen that the safety switch was not working and this was only a temporary measure. Mr Nguyen said that he called the mechanic two days later to remind him to come back and fix the switch permanently but the mechanic was not at home. The mechanic had told Mr Nguyen that he had to be careful that the switch was not hit again. He denied that the mechanic told him that it was dangerous.

12 Mr Nguyen did not tell Mr Nair that there was any problem with the switch because the hoist was working and there appeared to be nothing wrong with it. That is, the security doors and the hoist were working and as far as he could tell, after the switch had been taped up there was nothing wrong with the hoist. He himself used the hoist every day.

13 Mr Nguyen was asked whether the switch at the top level had been taped. My assessment of his evidence is that he was unable to recollect. He seemed to say that the hoist was working and that was his principal concern. Mr Nguyen admitted that his memory was not good.

14 Mr Nguyen gave evidence about what happened on the day of the accident. He said that Mr Nair was downstairs unloading goods into the cool room. Another employee named Frank was also downstairs. Mr Nguyen had been working upstairs.

15 In written evidence Mr Nguyen said that before the accident he had called down to Mr Nair to send the hoist up and to close the doors. He said, by calling down the hoist shaft, "That's the last pallet no more send hoist up, we take rubbish bin down, you come up with me and take rubbish down." At that stage Mr Nguyen said he remembered the upstairs roller door was closed. Mr Nguyen said that he went outside the back of the shop to get the bin and that Mr Nair was standing on the landing on front of the hoist. He said that they both picked up the rubbish bin and when they lifted it together he noticed the door was open. He thought that the hoist was up because that was their normal procedure. He said that Mr Nair and he both picked up the bin and placed it on the landing just outside the hoist and as he walked away to get another bin he heard a noise. He then turned around, went to the hoist and saw Mr Nair lying on the ground at the bottom of the hoist shaft. He arranged for an ambulance to be called.

16 Mr Nguyen said that it was his understanding that the hoist would not work if the door of the hoist was not closed. This was his understanding of the operation, even, presumably, with the switches taped up.

17 Mr Nguyen also gave evidence about the training and instruction which he received as manager of the shop and the training and instruction which he gave to staff including Mr Nair. When he commenced working at the Chatswood store in November 1997 as manager he was trained by Mr Whitfield who, he said, showed him the operation of the hoist. It was Mr Nguyen's responsibility as manager to organise and direct staff, to train staff on shop procedures and to train all staff on the safe use of the hoist on the shop premises. He said that when Mr Nair started working at the shop he showed him how to use the hoist and in the first two weeks of his employment there he did this about four or five times each week. In particular he told Mr Nair that the hoist would not work unless both doors were closed and that the hoist doors should be closed unless they needed to be open for the purpose of moving a load. In addition he said that he instructed Mr Nair that as soon as the hoist was loaded the door should be closed before sending it up or down and that the hoist should always be sent to the upper position when he had finished using it.

18 Mr Nair gave evidence in the proceedings. His evidence was given through the medium of an interpreter who translated from the Tamil language into English. As it transpired, whilst Mr Nair was able to converse in Tamil his preferred language was Malayan. Apparently, there are no Malayan interpreters available. This created some difficulty in taking Mr Nair's evidence.

19 Mr Nair had given a statement to the prosecutor, apparently without the aid of an interpreter. It was said that the prosecutor had asked each of the questions on three occasions to make sure that Mr Nair understood what was being asked of him.

20 Mr Nair denied receiving any safety training from the respondent and denied having been given any instruction in the use of the hoist. He said that for about three weeks prior to the accident it was possible to open the top roller door of the hoist whilst the hoist platform was still at the bottom level and that Mr Nguyen had told him that this was a fault some three or four weeks before the accident. He also said that about four weeks before the accident a lift technician came to the shop and told him that the hoist was dangerous and that the safety switches were not working and that he should be careful.

21 He said that he was working in the cool room at about 7.45am on the day of the accident when Mr Nguyen asked him to come upstairs to help him lift a green garbage bin from the road onto the hoist. Mr Nair said that the hoist door was already open at this time and that the hoist platform was on the bottom level. He said that Mr Nguyen pushed the garbage bin towards the hoist door, that he warned him to stop but Mr Nguyen did not hear him. The bin pushed him backwards down the lift well and the bin then fell on top of him. He suffered spinal injuries as a result.

22 Mr Nair was cross-examined in some detail about the presence of signs either in or about the hoist. He said that his memory had been affected because of "psychiatric tablets" which he had been taking.

23 Mr Nair agreed that he had been told to keep the hoist doors closed unless goods were being loaded onto or unloaded from it. He denied being told that the hoist door had to be closed because of a faulty hoist mechanism.

24 It was the evidence of Mr Nair that it was Mr Nguyen who taped one part of the switch to the other in order to allow the hoist to operate without the doors being closed. He said that before this happened the hoist had been working properly. Mr Nair was adamant that it was Mr Nguyen who taped up the switches. He also said that he overheard Mr Nguyen speaking to the hoist technician and the technician saying to Mr Nguyen that the hoist was dangerous. This was said about four weeks before the accident.

25 Mr Nair denied that he had been asked to send the hoist to the upper level at the time of the accident. He said that Mr Nguyen had been operating the hoist and that he had been using the switch at the upper level for this purpose. He denied that there was a switch to move the hoist situate at the lower cool room level. This denial does not appear to me to be consistent with other evidence in the proceedings. Nevertheless Mr Nair's evidence was to the effect that if he wished to operate the hoist he had to go up to the upper ground floor level and push the switch at that level.

26 Evidence was given by Theodore Hatze the Managing Director of Tesla Electronics Pty Ltd. He had originally become involved in the refurbishment of the hoist as a sub contractor to Multirig Pty Ltd. In carrying out this work he fitted the reed switches to the roller doors and interlocked them to the control circuit so that the hoist could not be operated unless both doors were closed. Mr Hatze also mentioned to Mr Pereth that the hoist should have electro mechanical interlocks fitted to prevent the doors being opened unless the platform was at the correct level. The original work was carried out by Mr Hatze in November 1997. He carried out further work in December 1997 at which time he replaced a faulty safety switch.

27 At all times Mr Hatze was aware that the hoist platform could still be accessed by opening the top level roller door whilst the platform was at the lower level. However the only person that he mentioned this to was Mr Pereth of Multirig Pty Ltd who, it appears, did not share this information with anyone in the defendant's organisation.

28 Mr Hatze was retained directly by the defendant after the accident. He said that at that time he mentioned to the manager Mr Nguyen that the hoist was unsafe and that it should have been interlocked from the beginning.

29 When Mr Hatze went to the site after the accident he saw that the magnets which attached the reed switches had been removed and the reed switches were taped over. He said that the effect of taping the switches was to remove the only safety device on the hoist. The ultimate safety device namely the electro mechanically interlocked switch was installed by Mr Hatze in March 1999.

30 The installation of that safety device occurred after the prosecutor had issued two improvement notices to the defendant dated 25 and 28 January 1999. In addition, Mr Whitfield said that it was not until he was advised by the prosecutor of the need to have an interlocking switch installed that he understood that the switches which had been previously been installed were insufficient.

31 Mr Whitfield said that prior to the accident he had not organised a maintenance programme for the hoist because he was still waiting for Mr Pereth to complete all outstanding work on the hoist.

32 Evidence was given during the course of the proceedings with respect to the training given to employees. Mr Whitfield said that the first manager of the Chatswood store had been fully trained and that he was supposed to have passed on his training to the second manager, Mr Nguyen. It was the manager's responsibility to ensure that all other employees at the store were trained.

33 Mr Nguyen said that he gave Mr Nair training when he started work at the Chatswood store. He said that he showed him how to use the hoist and that he told him every day for the first couple of weeks that the door always had to be closed when the hoist was used. No documentation was given to Mr Nair nor was Mr Nair required to sign anything confirming that he had undertaken training.

34 In the course of his evidence Mr Nair said that he had never received any training. However he conceded in cross examination that Mr Nguyen had shown him the work that he had to do and that he had received some training in connection with the hoist. In particular he said that he had been told to keep the doors of the hoist closed whilst it was being operated.

35 Mr Whitfield gave evidence concerning the commitment of the Duffy Bros group to occupational health and safety matters. New procedures had been introduced since 1997 which included the creation of a comprehensive safety manual which was incorporated into a staff procedures manual, with lectures given to staff from time to time. In addition there was a training programme for new employees as well as attention given to the need to provide safety equipment for the use of employees and the need to create a safe working environment. The relevant documentation was tendered into evidence in these proceedings.

36 In terms of the circumstances leading up to the accident, it will be remembered that Mr Nair was adamant that he was not told by anyone within the defendant's organisation that the hoist was unsafe to use, although he said that he had overheard a mechanic tell Mr Nguyen that it was unsafe. Mr Nguyen denied having been told by any third party that the hoist was unsafe and asserted that there was in fact nothing wrong with it prior to the accident. It was because he was of the opinion that there was nothing wrong with the hoist that he did not tell Mr Nair that there was any problem.

37 During the course of giving evidence about the state of the hoist switch mechanism before the accident Mr Nguyen said that he did not pay a lot of attention to whether the switches had been taped because it was not his job and he did not put it in his mind as being a matter of importance.

38 There can be no doubt that the hoist operation was unsafe in that the door at the upper level of the hoist could be opened whilst the hoist remained at the bottom level leaving a void of 2.7 metres unguarded during the course of carrying out an operation such as the loading of a rubbish bin onto the hoist. The difficulty is that no-one appears to have appreciated the potential danger that was created by the failure to install the interlock switch compounded by the fact that the reed switches were rendered inoperable by having been taped together.

39 It is clear that Mr Whitfield relied on the assistance and opinion of Mr Pereth. Mr Pereth did not give evidence in the proceedings. Such evidence as is before the Court leads to the conclusion that Mr Whitfield, on behalf of the defendant, was poorly advised by Mr Pereth in that no suggestion was made that an interlocking switch should be installed. Mr Whitfield conceded that he had no specific technical or electrical knowledge to allow him to make any independent assessment about the safety of the hoist operation. It is understandable that the potential risk to the safe operation of the hoist did not attract attention because the reed switches at least ensured that the hoist doors could not be operated unless the hoist was stationary. However, the disabling of the reed switches created a much more potent risk of injury in connection with the operation of the hoist.

40 I am not satisfied on the basis of the evidence that it was Mr Nguyen who taped up the reed switches.

41 I have already referred to the inconsistencies between the evidence of Mr Nair and that of Mr Nguyen. A statement which Mr Nair gave to the prosecutor on 8 February 1999 without the aid of an interpreter was to the effect that for about three weeks before the accident it was possible to open the top roller door of the hoist while the hoist platform was still at the bottom level. He said he had been told about the fault with the hoist by Mr Nguyen and that he had also been told by a lift technician who said that the safety switches were not working and that everyone had to be careful. Mr Nguyen disputed this evidence.

42 As I have previously indicated Mr Nair has a limited ability to converse in English. Mr Nguyen's ability to converse is somewhat better than that of Mr Nair but nevertheless, it was difficult to fully understand what he was saying whilst he was giving evidence. In the absence of any evidence from Mr Pereth, it is difficult to make any assessment as to which of the competing evidence of Mr Nair and Mr Nguyen should be believed. Documentation tendered into evidence established that Mr Pereth had made statements dated 16 March 1999 and 19 March 1999 to the prosecutor and that copies of those statements had been forwarded by the prosecutor's solicitors to the defendant's solicitors by letter dated 25 January 2001. The prosecution did not call Mr Pereth to give evidence in the proceedings. Accordingly any inference favourable to the defendant for which there was no ground in the evidence might be more confidently drawn because Mr Pereth was presumably able to put the true complexion on the facts relied upon by the prosecution for that inference and he has not been called as a witness. There is no evidence as to why Mr Pereth was not available to give evidence in the proceedings. (See Jones v Dunkel (1958-1959) 101 CLR 298.) However, even allowing for the inability to draw inferences in this way, I am not persuaded that I should accept the evidence of Mr Nair as to what he said he had heard Mr Pereth say. In any event, I do not regard this area of controversy within the evidentiary material as impacting upon the outcome of these proceedings.

WAS THERE A BREACH AS PARTICULARISED IN PARA (c)? The defendant pleaded not guilty to a breach particularised as having failed to provide such training and information to employees concerning the safe operation of the hoist as may have been necessary to ensure their health and safety. The extent and standard of training which employers are required to provide to employees under the Act was the subject of comment by a Full Bench of this Court in Genner Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Guillarte) (2001) NSWIRComm 267, reported at (2001) 110 IR 57. At para 57 the Court said: The appellant pointed to the evidence of Mr Genner to the effect that he had provided regular "on-the-job" training and instruction to Mr Ingram over many years. The evidence of Mr Genner was that this training encompassed issues of safety, including methods of directing vehicles entering and leaving worksites. Inspector Chadwick of the WorkCover Authority and Mr Johnson, an expert called by the appellant in the proceedings at first instance, agreed that "on-the-job" training can be a very effective method of training workers. However, whilst such training may, with respect to particular work, be sufficient to ensure a safe workplace, there will be many cases in which more detailed, comprehensive or systematic training and instruction will be required: see, for example, WorkCover Authority of New South Wales (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 at [24]-[25] and WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 at [71].

43 Ultimately, the situation in these proceedings is that the hoist could not be safely operated at any time prior to the accident and until well after the accident by reason of the failure to install an interlocking switch. This situation was exacerbated some time prior to the accident by the fact that the reed switches had been disabled. Employees should have been given such training and information as would have enabled them to use the hoist safely. Such training and information must, by definition, have extended to ensuring that the hoist doors were closed at all times whilst the hoist was not being utilised and that no attempt should have been made to open the upper level hoist door unless the operator was assured that the hoist was stationed at the upper level. Whilst there is evidence that Mr Nair was told that he should keep the hoist doors closed at all times whilst the hoist was not being used, there is no evidence that he was told that the upper level door should not be opened unless the hoist was stationed at that level. In these circumstances I find that the defendant breached s 15(1) of the Act in the manner particularised in para (c) as contained in the originating process.

44 The principles to be applied in sentencing offenders under the Act are well established and it is not necessary that I refer to them in any detail. I make particular reference to the decisions of the Full Bench of this Court in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 and in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) NSWIRComm 71.

45 It is first necessary to establish the objective seriousness of the offence. The defendant placed great weight on the fact that it had retained an expert to advise it as to the manner in which the operation of the hoist could be rendered safe, that it followed that expert advice and that its culpability was therefore at a minimum level. Of course, as the defendant acknowledged by its plea of guilty to particulars (a) and (b), it is not able to escape culpability under the Act by reason of a delegation of an obligation to a third party, no matter how expert that third party.

46 In appropriate circumstances questions may arise as to the extent to which an employer and others bound by the provisions of the Act are required to assess the expertise and competency of any expert retained by them. For the purpose of dealing with these proceedings it is not necessary that I deal in detail with this issue, although I would have thought that the difficulty which Mr Whitfield said he encountered in obtaining an efficient and effective response from Mr Pereth for the execution of the necessary work on the hoist may have given rise to some concern. Whilst Mr Whitfield did not profess to have any expertise in matters electrical or mechanical, this did not, in my opinion, absolve the defendant from properly considering what was proposed by Mr Pereth. Logically, the installation of the reed switches precluded the hoist from being operated unless the doors were closed. But they did not preclude a door from being opened whilst the hoist was stationary. Accordingly, they would not prevent the upper level hoist door from opening whilst the hoist was stationary at the lower level. Whilst employers may be excused from questioning the processes that an expert advises ought to be utilised for the purpose of securing the safety of a piece of equipment, they are expected to assess the impact of the operation of safety devices on the utilisation of the equipment. This is because employers are required by the Act to conduct themselves in a proactive and vigilant manner so as to reasonably anticipate any risk to the health and safety of employees. That is, the defendant should, in my opinion, have anticipated that despite the installation of the reed switches as recommended by Mr Pereth there would still be a risk of injury in the manner in which I have described. A proactive and vigilant approach to the recommendation of Mr Pereth would have involved thinking about the effect of the recommendation on the manner in which the hoist could be operated and would, as a matter of commonsense, have produced the logical result that the recommendation of Mr Pereth was flawed.

47 I regard the objective nature of the offence as pleaded to in part and found guilty in part as being, overall, serious. The seriousness which I have found is compounded by the attitude of the manager of the shop, Mr Nguyen, who did not seem to regard the operation of the hoist as being his immediate responsibility. There was no evidence given in the proceedings about the manner in which and the method by which Mr Nguyen communicated with Mr Nair. I do not know whether Mr Nguyen spoke either Malayan or Tamil. If, however, both of them were required to communicate with each other in English, then I can well understand the difficulties which this would have created because, as I observed during the course of their evidence, they both had a high degree of difficulty in communicating clearly in English.

48 Evidence was given by Mr Whitfield that no steps were taken to carry out any maintenance work on the hoist prior to the accident occurring. This was because Mr Pereth was continuing to carry out work on the hoist and had not completed the work allocated to him. The failure of the defendant to ensure that Mr Pereth carried out the work in a timely fashion and the failure to give consideration to the retention of an alternative contractor are additional indications as to the serious nature of the offence.

49 In determining that this is a serious offence I take into account the obvious risks involved when any employee of the defendant was carrying out work in the vicinity of the upper level of the hoist whilst the door was open and the hoist was some 2.7 metres below. As the defendant conceded, there were means available to it to remedy the risk of injury.

50 In addition to the general deterrent effect of the imposition of an appropriate penalty, I have regard also to the specific deterrent effect on this defendant. In this regard I note that the defendant is one of a group of companies which operates ten retail shops together with a warehouse at the Flemington Markets employing, in all, about 170 people. It has operated since 1989.

51 As I have previously indicated evidence was given in the proceedings concerning the introduction of a training programme for new employees and the creation of a comprehensive safety manual incorporated into the staff procedures manual. However some of these measures were not initiated until after the incident which gave rise to these proceedings. I am not satisfied beyond a reasonable doubt that the defendant's manager Mr Nguyen applied himself with all proper vigilance and diligence to an appreciation of the problems associated with the working of the hoist, especially after the reed switches had initially been taped up. His laissez faire attitude as manager in turn reflects upon the defendant. In addition Mr Whitfield was aware of the fact that the relevant work had not been carried out on the hoist over a long period of time and yet the hoist continued in operation. In all the circumstances the penalty must have a specific deterrent effect on this defendant.

52 In its favour, the defendant pleaded guilty to two of the particulars charged at an early date and that may be accepted as not only an acknowledgement of guilt but also an expression of remorse and a willingness to "facilitate the course of justice" (see joint judgment of Gaudron, Gummow and Callinan JJ in the High Court of Australia in Cameron v The Queen (2002) HCA6). As against this, the defendant did not plead guilty to the third charge, as was its right. In all the circumstances I propose to allow a discount of ten percent in relation to the defendant's plea of guilty.

53 The defendant submitted that in all the circumstances the Court should exercise discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 and dismiss the charge. Section 10 of that Act is in the following terms: 10. Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

54 In support of this submission the defendant relied on the fact that it had no previous convictions, that it is one of a group of companies which have been in business since 1989 and that the group of which it forms part conducted ten retail shops together with a warehouse in Flemington Markets employing 167 people. In addition the defendant relied on the fact that in essence it had engaged and relied upon Mr Pereth of Multirig Pty Ltd as an expert and that it had specifically stipulated to Mr Pereth that the hoist must comply with relevant safety standards. In addition the defendant endeavoured assiduously to persuade Mr Pereth to complete all outstanding work on the hoist.

55 A Full Bench of this Court in WorkCover Authority of NSW v Profab Industries (2000) 100 IR 64 considered the circumstances under which the predecessor of s 10 namely s 556A of the Crimes Act should be applied in prosecutions under the Act. The Full Bench concluded that notwithstanding the discretion given to a court by such a provision the exercise of the discretion "must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." (at para 26). I am, of course, bound by the judgment of the Full Bench in that case and accordingly the application of the discretion provided by s 10 must be confined in the manner indicated.

56 Although the defendant relied heavily on Mr Pereth in terms of safety devices which were to be installed on the hoist, it gave no consideration, on the evidence, to the impact that the safety devices would have on the operation of the hoist, and allowed the hoist to continue to be utilised although the reed switches had been disabled. I am far from impressed about the commitment of the defendant through its relevant personnel to the safe operation and utilisation of the hoist during the period leading up to the accident. Indeed, it appears that the problem was not rectified for some months after the accident. In these circumstances it is inappropriate, in my opinion, to exercise any discretion in favour of the defendant under s 10.

57 By way of mitigation, it is apparent from the evidence that the defendant cooperated fully with the WorkCover Authority of New South Wales in connection with its investigation of the incident, and readily complied with improvement notices issued by the prosecutor. Furthermore, the defendant undertook a review of its occupational health and safety policies and implemented enhanced training for its staff. It has no prior convictions and has been in business since 1989.

58 The maximum penalty is $550,000, which is indicative of the seriousness with respect to which the community through the legislature views breaches of the Act. The penalty imposed must reflect this fact and must reflect also the purposes and intention of the Act.

59 In all the circumstances I consider that the imposition of a penalty of $65,000 is appropriate from which should be deducted the ten percent allowance with respect to the plea of guilty. This will result in a net penalty of $58,500.

60 The prosecutor sought the payment of a moiety of the penalty and also sought an order for costs, which was not opposed.

61 I make the following orders: 1. The defendant is found guilty of the offence with which it is charged and is convicted accordingly. 2. The defendant is fined the sum of $58,500 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecution which will be assessed by the Court in default of agreement. ______________________

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