Inspector Forster v A B John Pty Ltd t/as Peel Valley Machinery Service & D P John Pty Ltd t/as Peel Valley Machinery Service

PROSECUTOR Mr J M Galluzzo of counsel Solicitor: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT Mr P Coleman of counsel Solicitor: Mr T Khan Egan Murphy Solicitors

JUDGMENT: - 10 - FINDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR JOHN FORSTER v A B JOHN PTY LTD T/as PEEL VALLEY MACHINERY SERVICE

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

INSPECTOR JOHN FORSTER v D P JOHN PTY LTD T/as PEEL VALLEY MACHINERY SERVICE

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT [2003] NSWIRComm 116 1 Paul Edward Cook was employed by the defendants as a tradesman's assistant in their Narrabri workshop in New South Wales. On 13 April 2000 he was instructed to assist an apprentice in removing hydraulic augur motors from a damaged Cotton Picker top which was located on grass covered land on the opposite side of the road to the workshop. In doing so, Mr Cook attempted to lift the damaged machinery using the tines of a forklift truck. The forklift was near an incline. The forklift travelled backwards down the incline. Mr Cook applied the brakes and the forklift skidded on the grassed surface. The forklift started to roll onto its side. Mr Cook appeared to attempt to jump clear of the forklift but he was caught by the falling mast carriage of the forklift and pinned by his legs and torso. Mr Cook was conveyed to hospital suffering crush injuries. He died on 26 April 2000. 2 In applications for orders under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967, the prosecutor, Inspector John Forster of the WorkCover Authority of New South Wales, alleged that the defendants failed to ensure the health, safety and welfare at work of all of their employees and in particular, Paul Edward Cook contrary to s 15(1) of the Occupational Health and Safety Act 1983. Section 15(1) of the Act states: 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.

3 The particulars of the charge laid against A B John Pty Ltd were that the defendant failed to: (a) provide or maintain systems of work that were safe and without risks to health (b) provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees (c) ensure that the forklift truck was operated by persons with appropriate certificates of competency or if training, only under the supervision of a person with an appropriate certificate of competency (d) adequately identify, assess and control risks and hazards in relation to the removal of the hydraulic augur motors from under the cotton picker top (e) ensure that safe and appropriate equipment and procedures were used for the removal of the hydraulic augur motors from under the cotton picker top.

4 The particulars of the charge laid against D P John Pty Ltd were that the defendant failed to: (a) provide or maintain systems of work that were safe and without risks to health (b) provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees (c) ensure that the forklift truck was operated by persons with appropriate certificates of competency or if training, only under the supervision of an appropriately qualified person (d) adequately identify, assess and control risks and hazards in relation to the removal of the hydraulic augur motors from under the cotton picker top (e) ensure that safe and appropriate equipment and procedures were used for the removal of the hydraulic augur motors from under the cotton picker top.

5 The prosecution of the defendants is unusual to the extent it was accepted by the defendants that in relation to the alleged breaches of s 15(1) they were joint employers of Mr Cook and each pleaded guilty to the offences as charged. It was submitted for the defendants that despite the two corporate entities their businesses were run as a single family business involving the selling and servicing of agricultural farm machinery. The business traded as Peel Valley Machinery Service and both defendants accepted liability arising out of the incident on 13 April 2000, although the applicability of the totality principle was raised and I shall deal with that later in this judgment.

6 Agreed statements of facts were tendered in respect of both defendants. In addition to a description of the incident the statements referred to the fact that Mr Cook was not certified to operate a forklift and at the time of the accident Mr Cook was not being supervised by a person with an appropriate certificate of competency.

7 Other evidence adduced in the proceedings included:

· A bundle of 13 colour photographs of various aspects of the accident scene;

· Sketch plans of the accident. · A factual inspection report prepared by Inspector Forster.

· The defendants' records of prior convictions showing that neither had any prior convictions.

· An affidavit of David Phillip John. Mr John was not required for cross examination.

8 Mr John's affidavit addressed a number of issues including: · A description of the family business including that it currently employs 116 people; · The effect on the business of the current drought;

· That any major financial imposition could impact upon the viability of the business being able to continue to operate;

· Training of employees including safety training and forklift training;

· Counselling and assistance, including financial assistance, to Mr Cook's wife; · The erection of a memorial to Mr Cook;

· The steps taken by the defendants to avoid a recurrence of the accident;

· The retention of an occupational health and safety consultant to provide advice, training and direction in relation to occupational health and safety matters;

· The carrying out of safety audits at each branch to assess safety standards;

· Occupational health and safety training for all branch and service managers;

· The remorse and contrition felt by the defendants. Consideration

9 These proceedings involve the prosecution of two companies under s 15(1) of the Occupational Health and Safety Act. As I earlier observed, the proceedings are somewhat unusual because both entities accept liability as an employer for the risk to health and safety arising out of the accident on 13 April 2000. This is because the two companies operated as one business, trading under the name Peel Valley Machinery Service and it was impossible to single out one of the companies as being the employer in relation to what occurred on 13 April 2000. Both the prosecution and the defendants regarded it as proper and consistent with the terms of the legislation that both companies be held liable.

10 I am satisfied that the offences have been proven. The pleas of guilty by the defendants were properly made and I enter verdicts accordingly.

11 The maximum penalty available in each case is $550,000. This is a significant penalty reflecting the gravity of offences under s 15(1) of the Act as perceived by the community: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P.

12 The starting point in any consideration of the amount of any penalty to be imposed is the objective seriousness of the offence; this is the primary factor. Subjective factors that mitigate the seriousness of the offence must be secondary to a consideration of the nature and quality of the offence: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77.

13 Mr P Coleman of counsel for the defendants submitted that, contrary to what was put by the prosecution, the seriousness of the offences was less than it otherwise might have been for a number of reasons, namely:

· The consequences of the breach should not be used to measure the seriousness of the offence: Tyler v Sydney Electricity (1993) 47 IR 1 at 5.

· The defendants did have a safe system of work; their failure was in relation to instruction and supervision.

· The risk to safety was not reasonably foreseeable.

14 I accept that the gravity of the consequences of a breach of the Act is not of itself a measure of the seriousness of the breach. However, as Hungerford J in Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 131 observed: However, 'the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety': per Hungerford J in Watson v Southern Asphalters Pty Limited (unreported, NSW Industrial Court, Hungerford J, CT 95/1260, 21 March 1996), p19; and 'the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of the gravity of the breach itself and the measure of culpability'; per Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 at 5.

15 As to the submission that because there was a safe system of work the seriousness of the offence was less than it otherwise might be, it appears that a crane was available for Mr Cook to use to lift out the augur motors rather than the forklift and that the crane represented a safe system of work. If a safe system of work exists but employees have not received the necessary instruction or supervision in relation to the safe system then it seems to me that the safe system might as well not exist. Mr Coleman submitted that the deceased was a mature individual who had worked for the defendants for seven years with the implication being that even though he had not received instruction or supervision regarding the use of a crane to lift the motors from the cotton picker he had the experience to adopt a safe system of work. I note that Mr Cook was not certified to drive a forklift yet he did so.

16 The cases are replete with examples of persons who have not adopted a safe system of work where such a system was available. It cannot be assumed by an employer that even experienced and mature employees will adopt a safe system of work. Most certainly it cannot be assumed this will be the case where the employees have not received instructions or are not subject to supervision as to the safe system of work.

17 As it has been stated on many occasions, the duty imposed on an employer under s 15(1) of the Occupational Health and Safety Act is an absolute duty: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469-470; Italo-Australia Constructions Pty Ltd v Parkes (1988) 24 IR 428 at 431; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57. The nature of the duty on employers leaves no room for assumptions about employees' behaviour or conduct when it comes to their health and safety. 18 As to the risk not being readily foreseeable, it is not necessary that the actual incident constituting the breach was foreseeable by the defendants. The question is whether, on an objective test, in the absence of proper information, instruction, training and supervision, it was reasonably foreseeable that an employee might use an inappropriate and dangerous method (use of a forklift) to carry out a task and in doing so this might constitute a risk to safety. I consider that the risk was foreseeable but I accept that in the absence of any similar incident occurring in the past this was not a case where the defendants ignored a known and obvious risk.

19 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant to assessing the seriousness of the offence in this case: see Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. In this case proper supervision, instruction and training could have avoided the risk to safety.

20 In relation to deterrence, the associated principles were discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence, the defendants have taken steps to avoid a recurrence of the risk and have improved their system of occupational health and safety. Whilst I have had regard to the need for specific deterrence it has not figured prominently in my consideration as to penalty.

21 There are a number of subjective factors to be taken into account in sentencing. Firstly, there were early pleas of guilty in respect of which the defendants are entitled to a discount on their sentences. Secondly, there is no doubt the defendants were badly affected by this tragedy and they are remorseful and contrite. This is reflected in the defendants' most admirable assistance provided to Mr Cook's widow and the assistance provided to the WorkCover Authority in its investigations. Thirdly, the business has been operating for nearly 40 years and neither defendant has any prior conviction. Fourthly, the defendants have put in place appropriate measures to improve their systems of occupational health and safety.

22 Mr Coleman also submitted that I should take into account the difficult trading position in which the defendant's find themselves as a consequence of floods in 2000 and the subsequent drought. He also submitted that when it came to assessing the appropriate penalty the Court should have regard to the principle of totality. Mr Coleman submitted that for all practical purposes the offences were, in reality, one offence.

23 The defendants' business is not a small concern given that it employs 116 people. Moreover, apart from general statements regarding the difficult trading conditions and the effect of sharply increased workers' compensation premiums, there was no evidence regarding the defendant's means. I am, therefore, not inclined to give much weight to the defendant's financial circumstances as a reason to mitigate the sentence.

24 As to the totality principle, strictly speaking, it seems to me the principle does not have any application. As McHugh J described it in Postiglione v The Queen (1997) 189 CLR 295 at 307, the principle of totality of sentencing "requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved". In other words, the principle is to be applied in circumstances where an offender is being sentenced for multiple offences. In this case there are two defendants charged with a single offence, albeit the same offence.

25 However, I consider it is well established that in the circumstances with which I am dealing it is appropriate to impose an overall penalty and divide it equally between the two defendants: see Haynes v CI & D Manufacturing Pty Ltd and anor (1995) 60 IR 455; Moore v E W Cox Pty Ltd (1990) 37 IR 145 at 149; WorkCover Authority of New South Wales (Inspector Robinson) v Bosnjak Holdings Pty Limited and anor [2002] NSWIRComm 295 at pars[24] to [42]; Inspector Brian Dell v Baradine Sawmilling Co. Pty Ltd. Inspector Brian Dell v Gunnedah Timbers Pty Ltd. [2002] NSWIRComm 304 at par [81].

26 I have considered the objective seriousness of the offences as well as subjective factors including the steps taken by the defendants to remedy the deficiencies in their system of health and safety thrown up by the incident giving rise to these proceedings, cooperation with WorkCover, the utilitarian value of an early plea of guilty, the defendants' remorse and contrition, the defendants' good safety record and the unusual circumstance referred to earlier whereby Mr Cook was employed by both defendants and, although separate entities, the defendants conducted their businesses as one.

27 In all the circumstances, I would assess an appropriate penalty of $150,000. I consider this amount should be discounted by 25 per cent for the early plea of guilty and a further 10 per cent for the other subjective factors I have identified. This results in an amount of $97,500 and a fine of $48,750 for each defendant.

28 The Court makes the following orders: Matter No 2107 of 2002 - A B John Pty Ltd 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $48,750 with a moiety thereof to the prosecutor. 4) The defendant is to pay the prosecutor's costs of these proceedings as agreed or, failing agreement, as ordered by the Court. Any application made in regard to Order 4 should be filed and served within 21 days of today's date.

Matter No 2108 of 2002 - D P John Pty Ltd 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $48,750 with a moiety thereof to the prosecutor. 4) The defendant is to pay the prosecutor's costs of these proceedings as agreed or, failing agreement, as ordered by the Court. Any application made in regard to Order 4 should be filed and served within 21 days of today's date.

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