Inspector Gabrielle Belley v Rail Infrastructure Corporation. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 - [2001] NSWIRComm 323 - NSWIRComm 1995 case summary — Zoe

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Inspector Gabrielle Belley v Rail Infrastructure Corporation. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983

[2001] NSWIRComm 323

Industrial Relations Commission (NSW)|1995-10-26|Before: Haylen J, Schmidt J, Mr J

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Court

Industrial Relations Commission (NSW)

Decision date

1995-10-26

Before

Haylen J, Schmidt J, Mr J

Source

Original judgment source is linked above.

Judgment (165 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Gabrielle Belley v Rail Infrastructure Corporation. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 [2001] NSWIRComm 323 PROSECUTOR: Inspector Gabrielle Belley PARTIES : DEFENDANT: Rail Infrastructure Corporation FILE NUMBER: IRC 5177 of 2000 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 17(1)(a) - plea of guilty by successor to interests of previous statutory corporation - statutory corporations amalgamated then dissolved on creation of new statutory corporation - effect of transitional provisions - operation of s 51A of Act - only one amalgamating statutory corporation having prior convictions recorded - whether record of previous corporations transferred to new statutory corporation - whether record of one of the amalgamating entities only to be considered - statutory corporation responsible for safety rules - safety rules failed to make provision for work on railway lines with narrow clearances between lines - statutory corporation given access to rail network - failure of that corporation to train and supervise its employees - contractual obligation to apply safety rules of statutory corporation owning rail network - effect on culpability of defendant - role of statutory corporation responsible for maintenance of rail network - defendant's system of work leaving discretion in hands of workers - foreseeability - contrition by a corporation

[8]

1 On 27 October 1998, Mr Stephen Hockings was fatally injured at Trangie Rail Yard while he was carrying out shunting duties for the Rail Access Corporation. Following an investigation of the circumstances surrounding this fatal accident, Inspector Belley applied for the issue of an Order requiring the Rail Access Corporation to appear before the Industrial Relations Commission in Court Session. The charge which was alleged, in substance, was in the following form: That Rail Access Corporation, a statutory corporation pursuant to the Transport Administration Act of 1988, … on 27 October 1998, at the Trangie Rail Yard at Trangie in the State of New South Wales, who had, to any extent, control of non-domestic premises, to wit, the Trangie Rail Yards, which had been made available to persons, (not being its employees) as a place of work, did fail to ensure that the premises were safe and without risk to health, contrary to s 17(1)(a) of the Occupational Health and Safety Act 1983. The particulars of the charge were stated to be as follows: (a) the defendant, at all material times, was the owner of the Trangie Rail Yard at Trangie; (b) the defendant, at all material times, entered into an agreement with Freight Rail Corporation to allow freight trains to operate on the rail networks in New South Wales; (c) the defendant failed to ensure that warning signs had been erected in all locations having narrow track clearances to advise users of the railway lines in the Trangie Rail Yard; (d) the defendant failed to advise the Freight Rail Corporation of railway lines with narrow track clearances in the Trangie Rail Yard; (e) the defendant failed to ensure that only persons who had been trained in undertaking shunting duties on railway lines with narrow track clearances were allowed access to such railway tracks; (f) the defendant failed to ensure that a safe system of work was in place for persons undertaking shunting duties on railway lines with narrow track clearances; (g) as a result of the said failures, Stephen Hockings suffered fatal injuries.

[21]

In July 1996, the New South Wales rail industry was restructured by the Transport Administration Amendment (Rail Corporatisation and Restructuring Act 1996 (NSW) which amended the Transport Administration Act 1988. Under this legislation, the then State Rail Authority was broken up into 4 separate organisations: (a) Rail Access Corporation - a new statutory State-owned corporation whose functions included: (i) holding, managing and establishing rail infrastructure facilities on behalf of the State: and (ii) providing rail operators with access to the NSW rail network. (b) State Rail Authority of NSW - a new statutory body, responsible for the operation of efficient, safe and reliable railway passenger services. (c) Railway Services Authority of NSW (renamed in 1998 to Rail Services Australia) - a new statutory State-owned corporation whose principal objectives included being an efficient, safe and reliable supplier of goods and services to the rail industry. (d) Freight Rail Corporation - a statutory State-owned corporation established to operate efficient, safe and reliable rail freight services. 13. As mentioned in paragraph 4 above, as of 1 January 2001, the NSW rail industry underwent further structural changes resulting in the dissolution of Rail Access Corporation and Rail Services Australia and the formation of a new statutory State-owned corporation, Rail Infrastructure Corporation . Role of Rail Access Corporation 14. In the Second Reading Speech to the Transport Administration Amendment (Rail Corporatisation and Restructuring) Bill on 17 April 1996, the then Minister for Transport set out the intention of the Government that the new Rail Access Corporation was to be: …a small organisation with a strict focus on negotiation of access and, while it will have management responsibility for maintenance, train control, signalling, communications, and the like, it will arrange for the work to be carried out by other rail businesses and, potentially by private sector organisations. To perform its functions effectively, the Rail Access Corporation will develop and maintain an informed customer capability; it will understand and specify its needs and verify that they are being adequately provided by its suppliers, but it will not undertake such works itself - to do so would be to distract the management of the corporation from the more important task of administering the open access regime. 15. From 1 July 1996 Rail Access Corporation was the owner of the majority of the NSW rail network. 16. Monitoring and maintenance of the rail network owned by Rail Access Corporation was contracted to maintenance contractors, mainly Rail Services Australia. The Trangie Rail Yard 17. At the time of the accident, Rail Access Corporation was the owner of the main and loop lines at the Trangie Rail Yard.

[34]

(h) C 2445 - Track Examination: Examination of Track and Structure Clearances - details the policy for examination of lateral clearance to structures, vertical clearance to overheard structure and track centres between adjacent tracks. Point 6 states 'track centre examination is required on multiple track main lines'. Trangie yard does not have multiple track main lines. 26. Rail Access Corporation contracted Rail Services Australia to conduct inspections of the railway lines of the Trangie Rail Yard. An inspection report dated 19 May 1995 prepared by the former State Rail Authority was produced by Rail Services Australia to the WorkCover Authority. This report records the track centre clearances of the relevant lines at the Trangie Rail Yard. In relation to this inspection report, the Department of Transport, in the report of its investigation into this matter, concluded that it is 'reasonable to assume' that an appropriate report was submitted to the relevant Rail Services Australia officers. 27. This assumption on the part of the Department of Transport was based upon the fact that Rail Services Australia referred to track centre clearances at the Trangie Rail Yard "as part of the 1996/97 Major Periodic Maintenance (MPM) works as detailed in Schedule 10 of the Deeds of Agreement for the South West Region". An MPM identifies the work that Rail Services Australia through its inspection program recommends to be done. 28. A copy of a schedule which formed part of an MPM program was produced by Rail Services Australia to the WorkCover Authority. The bottom of the document carries an October 1996 date. The schedule refers to 'relocation of three turnouts, extend culvert and increase track clearances'. Rail Services Australia claims that an inspection was carried out on 1 October, 1996, however no inspection document has been produced. 29. Rail Services Australia claims that its records were lost in severe flooding at Nyngan in January 1998. 30. Rail Services Australia claims that this schedule was included in the 1997/98 MPM program that was forwarded to Rail Access Corporation. The schedule refers to more than 30 other matters. Nothing was put in the MPM program which indicated that the Trangie Rail Yard should be singled out as a special risk that required priority attention. Rail Services Australia claims that a similar reference was included in the schedule to the 1996/97 MPM program submission. 31. However, there is no evidence that prior to 27 October 1998, the track clearances at Trangie were identified, categorised or alerted to Rail Access Corporation by Rail Services Australia or Freight Rail Corporation as a safety issue or hazard to shunting operations which needed additional initiatives to be taken by Rail Access Corporation to provide for a safe system of work. Access Agreement with Freight Rail Corporation 32. At all relevant times, Rail Access Corporation granted Freight Rail Corporation access to certain parts of the NSW rail network (including certain aspects of the Trangie Rail Yard) subject to the terms and conditions of an access agreement dated June 1998 between Rail Access Corporation and Freight Rail Corporation (as amended by an Agreement of Variation dated 24 June 1998).

[69]

7 In addition to the agreed Statement of Facts, the prosecutor also tendered the Factual Inspection Report prepared by Inspector Belley dated 3 June 1999. The Factual Inspection Report records an inspection conducted on the day of the accident. The following observations were noted: 1. Trangie Railway station, Trangie. A weatherboard station building with concrete platform extending some distance in each direction from the building. 2. The station yard had four railway tracks. The main Sydney-Cobar line is adjacent to the station platform. Next to the main line is a loop line, which is used for shunting and holding wagons or for passing of trains standing at the station. It is connected to the main line at the Sydney end and at the Cobar end of the yard. Next to the loop line is a spur line connected to the main line at the Sydney end, used for holding wagons. Next to that spur line is another longer spur line, connected to the main line at the Sydney end and adjacent to wheat silos, that is used for loading of wheat and shipping containers. 3. A goods train was standing in front of the platform on the main rail line. The train consisted of three diesel electric locomotives numbered 4899, 48102, 48104 consecutively. They each had the logo FreightCorp on the side. The locomotives were connected to seven wagons, each with one or more containers on them. The train had an overall length of approximately 200 metres. 4. Behind the goods train on the mainline were another 14 empty wagons standing separate from the goods trains. 5. Eight stationary wagons, which had been loaded with cottonseed containers were standing on the loop line adjacent to the main line. 6. The cottonseed loading area is adjacent and south of the wheat silo. Wheat is loaded into wagons from the silo. The loading area for wheat is on the eastern side of the station; furtherest away from the station platform. 7. The loading area contained three silos, a storage warehouse and a shipping container loading area. A large front-end loader is used to load the shipping containers on to the rail wagon. Numerous shipping containers were standing in this area. 8. Senior Constable Glenn Bootle showed us the last wagon of the wagons connected to the locomotives, marked NOCY 34666Y. The dimensions of NOCY 34666Y were 20.1 metres long, approximately 2,750mm from the ground to the top of the wagon; 1100mm from the ground to the bottom of the wagon; and 2,880mm wide. 9. A set of rungs, which were 4,920mm from the end of the wagon facing the loop line. A metal ladder connected to the wagon commenced 300 mm above the ground and consisted of three metal rungs connected to the bottom underside of the wagon and three round horizontal bars on the side of the wagon. The position of the bottom rungs was inside the outline of the body of the wagon. There was evidence of boot prints on the frame of the wagon below the first round bar. … 11. The distance between the main line and the loop line measured from the inside of the railhead was between 1,835mm and 1,875mm at different locations. … 13. The space between the stationary wagons on the loop line and the wagon which Hockings was riding on the main line measured 280mm at the smallest point and 400 millimetres at the largest. … 15. Measurements of the track centres (distance between mid point of one rail line to mid point of an adjacent rail line) between main line and loop line from the Sydney end to in front of the station platform varied from 3,270mm to 3,210mm.

[144]

76 In relation to foreseeability, the written submissions for the defendant accepted that the accident was foreseeable but the oral argument raised the issue of the "degree" of foreseeability. It was submitted in oral argument that the defendant would not suggest that there was no foreseeability but it was really "a matter of degree". It was said that it was significant that in 116 years no similar accident had occurred at the Trangie Yard. It was also said that Mr Hockings should have been on the other side of the last wagon because he was using a radio: SWU 136 made that a requirement. This submission ignores the fact that SWU 160 stated that, when using hand signals, the shunter was required to remain on the driver's side of the train during the shunting exercise. It seems obvious that, if the Safe Working Units did not prohibit use of hand signals when a radio was provided, and was effective then, so long as a shunter adopted a combination of control by radio and hand signalling he or she was obliged to remain on the driver's side of the train. The next submission made was that the shunter had not been trained in the yard adequately and therefore did not "learn the yard thoroughly" as required by SWU 160. It is suggested that if he had known the yard in accordance with SWU 160 the accident probably would not have happened. SWU 160, however, in terms makes no provision about narrow clearances. The requirement to learn the yard thoroughly is followed immediately by a requirement that the employee should memorise the location of all point levers and other objects that could be an obstruction so that they would not fall over them. SWU 160 then talks about learning the local working, which were the arrival and departure times, learning the holding capacity of all roads and their fouling points, to learning the correct method of applying and releasing hand brakes especially on interstate vehicles. It stated that spare couplings, tail ropes or other obstacles were not to be left so that people could fall over them. It directed that employees were not to lean, sit or stand close to any non-interlocked point levers during shunting work; not to walk between couplings or bend down and walk under them; not to risk injury form air hoses swinging about or blowing debris into the eyes when they are being detached from vehicles; not to walk between moving vehicles; not to walk between stationary vehicles; not to use tail ropes or emergency towing chains if it can be avoided; not to depend on air brakes alone to hold a vehicle; not to leave trains or vehicles standing foul of another line. Not one of these instructions made any mention of taking particular care and what steps should be taken where there was a narrow clearance.

[157]

89 Counsel drew attention to the provisions of the Transport Administration Act 1988 as amended. Amendments brought about by the Transport Administration Amendment (Rail Management) Act 2000 appear in Sch 7 to the Act. Division 3 deals with provisions consequent on the merger of RAC and RSA and provides as follows: Section 89. RIC an amalgamation of RAC and RSA. (1) Rail Access Corporation and Rail Services Australia are amalgamated to form Rail Infrastructure Corporation. (2) On that amalgamation, (a) Rail Access Corporation and Rail Services Australia are dissolved as separate entities, and (b) Rail Infrastructure Corporation is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as, Rail Access Corporation and Rail Services Australia, and (c) Without limiting the operation of this clause - the assets, rights and liabilities of Rail Access Corporation and Rail Services Australia are the assets, rights and liabilities of Rail Infrastructure Corporation … Section 92. Staff of RAC and RSA (other than CEO's) (1) In this clause "existing employee" means a person who was a member of the staff of Rail Access Corporation or Rail Services Australia immediately before the amalgamation of these corporations (other than the Chief Executive Officer of Rail Access Corporation or Rail Services Australia). (2) All existing employees are, on the amalgamation of Rail Access Corporation and Rail Services Australia, employees of Rail Infrastructure Corporation. (3) Except as otherwise provided by this Schedule and the Regulations, the terms and conditions on which existing employees are employed on that amalgamation (including terms and conditions as to remuneration, allowances, and duration of employment) are those on which they were employed by Rail Access Australia or Rail Services Australia immediately before that amalgamation. Section 93. Superseded references. In any other Act, or in any instrument made under any Act or in any other document at any time, a reference to (or required immediately before commencement of this clause to be read as a reference to) Rail Access Corporation or Rail Services Australia is to be read as a reference to Rail Infrastructure Corporation.

[158]

90 The defendant does not submit that these amendments have the result that this prosecution, commenced against RAC, cannot be pursued. This is not a case where legislative changes had the effect of dissolving a statutory body and making only limited transitional provisions in relation to civil matters such as considered by Hungerford J in WorkCover Authority (Inspector Rech) v Sydney Market Authority (1997) 82 IR 134. In that case, it was common ground that the Sydney Market Authority was being dissolved. It was a statutory corporation representing the Crown but was dissolved by Act of Parliament. When that occurred it ceased to exist in circumstances where it was proposed that there be a sale of the business to private enterprise. It was also common ground between the parties that, if the prosecution case and possibly any appeal was not finalised before the dissolution of the Authority, then the present charges would abate and effectively lapse. There would be no defendant and that would be indistinguishable from the position where there was a death of a natural person. His Honour noted the provision that, on the dissolution of the Authority, the assets, rights and liabilities (if any) of the Authority became the assets, rights and liabilities of the Crown. In his Honour's view, this was a transitional provision dealing with civil matters only. There was no transitional provision made expressly or by necessary implication dealing with the criminal liability of the Authority. It was held that the legislature had not chosen to maintain the entity for the purposes of finalising criminal charges. A case more closely resembling the circumstances which arise here is WorkCover Authority NSW (Inspector Gilbert) v Energy Australia - formerly Sydney Electricity (1998) 85 IR 99. That case involved a prosecution under s 15(1) of the Act concerning a linesman formerly employed by Sydney Electricity which had become Energy Australia. On a plea of guilty, Energy Australia had no prior convictions but Sydney Electricity, the original defendant and its predecessor, the Sydney County Council, did have prior convictions. The prosecution sought that the prior convictions be taken into account against Energy Australia. Objection was taken by the defendant which submitted that there was not a mere name change to Energy Australia but there was created a separate legal entity. Here, there had been an amalgamation of a number of legal entities and a separate management structure with a new focus on safety and a new corporate culture. Hungerford J held that, whether the charges continued after Sydney Electricity was dissolved depended upon the statutory transitional provisions under the Energy Act by which the new entity assumed the functions of Sydney Electricity. His Honour noted that, the ordinary rule was that on the dissolution of a defendant statutory corporation to a criminal charge, the charge abates and effectively lapses because there is no continuing legal person in existence against which proceedings may be maintained ( Rech ). Where the legislature creates a successor statutory corporation, the question of whether any criminal liability of the former body is assumed by the new body will depend on the terms of the statute effecting the dissolution on one hand and the creation on the other. His Honour then stated: In other words, if the legislature by express enactment provides the original and the successor bodies are one and the same legal person then it would follow that an undetermined criminal charge against the former would continue against the latter unaffected by the fact that the former was indeed dissolved. It may even follow that proceedings in respect of a criminal charge for an offence committed by the former body could be instituted against the new body even after the former had been dissolved, provided, of course, that any statutory limitation period did not otherwise operate as a bar. Again, the reason would be the new body was created with the same legal personalty as the former body (at 113). His Honour accepted that, where transitional provisions allowed a "liability" of the previous entity to be transferred to the new entity, the word "liability" was apt to embrace both criminal responsibility and civil responsibility (Byrne v Garrisson [1965] VR 523 at 528. The appropriate meaning and whether there should be an extended meaning will depend on the statutory context in which it is used. Importantly, in that case, his Honour was required to consider yet another body within the statutory framework where there was a subsequent dissolution and the constitution of another statutory State owned corporation. The transitional provision provided that on and from the dissolution of the first body, the new body was "taken for all purposes … to be a continuation of, and the same legal entity as" the previous body. His Honour was of the view that such a statutory transitional provision evinced a clear intention to transfer the criminal liabilities of the new body.

Inspector Gabrielle Belley v Rail Infrastructure Corporation. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983

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