Inspector Garg v Precision Valve Australia Pty Ltd

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Factories Shops & Industries Act 1962 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 CASES CITED: R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104 Winchester (1992) 50 ACrimR 345 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383

Prosecutor: Mr D. O'Neill, of counsel Solicitor: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: WorkCover Authority

Defendant: Mr B. Hodgkinson, of Senior Counsel Solicitors: Deacons

Inspector Garg v Precision Valve Australia Pty Ltd [ACN 000 599 922]

Prosecution pursuant to section 8(1) of the Occupational Health and Safety Act 2000

1 Precision Valve Australia Pty Ltd has pleaded guilty to an amended application for order which alleges that an offence was committed under s 8(1) of the Occupational Health and Safety Act 2000. The offence is particularised in the amended application in the following way:

c) The defendant failed to provide and maintain a system of work for the operation of the forklifts by its employees which was safe and without risks to health, in that:

(i) The defendant failed to ensure that all operators kept all parts of the body within the cabin, in particular when they were nearby or alongside another forklift.

(ii) The defendant failed to ensure that a safe distance was maintained between the forklifts when the forklifts were operated.

(d) The defendant failed to provide such information, instruction and training as was necessary to employees to ensure their health and safety whilst operating the forklifts, and in particular, the sufficiency of any information, instruction and training relevant to the situation where drivers have their forklifts in close proximity to other forklifts.

As a result of the said failures Daniel McNally was placed at risk of injury. 2 According to the agreed statement of facts tendered by the prosecutor during the sentence proceedings the defendant manufactured and assembled aerosol valves. It employed a number of employees, including Joshua Baber, 24 years of age, and Daniel McNally, 22 years of age, both of whom at the time of the offence were employed as storemen. 3 On 6 June 2002 Mr McNally and Mr Baber were operating two forklifts in the defendant's warehouse. These forklifts were used to collect stock in the warehouse for the processing of orders from customers (referred to as "order picking"). Two other employees Mr Kerr, also a storeman, and Mr Wawn, the supervisor, were also present in the warehouse. At about 8:55am Mr McNally and Mr Baber stopped their forklifts in order to talk to each other. The forklifts were parked about 1.5 metres apart with the cabins facing each other and the driver's seats facing in opposite directions. The electric motors remained on while the two vehicles were stopped. When the conversation finished Mr Baber moved his forklift forwards in order to drive past Mr McNally's forklift. He had moved about a metre when he stopped his forklift because he was getting too close to Mr McNally's forklift. He then heard a noise between the forklifts and turned to see Mr McNally's head lodged between the uprights of the two forklifts behind the head guards approximately one metre off the ground with his face looking upwards. Mr Baber moved his forklift to release Mr McNally's head. An ambulance arrived soon after however it appeared that Mr McNally had died instantly from head injuries. 4 Some hours after the accident Inspector Garg from the WorkCover Authority of New South Wales attended the warehouse and made a number of observations. He also took thirteen photographs of the premises and of the forklifts which were involved in the accident. A sketch of the accident scene was also prepared by the Inspector. The forklifts involved in the accident were manufactured by a Swedish company and were identified as L426 and L427 respectively. Mr McNally was driving the forklift identified as L426 and Mr Baber was driving the forklift identified as L427. It seems that in relation to these types of forklifts which are known as reach forklifts there is a blind spot located in the area holding up the roof of the cabin which is positioned directly behind the head of the driver. Each forklift contained an overhead mirror which had the apparent purpose of assisting the driver in reducing the area of the blind spot. The blind spot on Mr Baber's forklift was facing Mr McNally's forklift when Mr Baber was driving past. Both forklifts were examined by the Police Engineering Investigations Section following the accident and found to have no mechanical defects or component failures. It was also ascertained during the course of the investigation that Mr Baber had a forklift licence obtained on 20 May 1999 and Mr McNally also had a forklift licence obtained on 29 June 1998. 5 The defendant had an operator's manual for the forklifts called the BT Operator's Manual. Under the section of the manual headed "Driving" the following instruction appeared:

Risk of crushing exists if any part of the body is outside of the operator's cab.

Always sit with the whole of your body inside the protective cab. 6 There were no signs or notices in the warehouse or on the forklifts in relation to the instruction to keep one's body wholly within the forklift. It was also common practice for the forklift drivers to stop their forklifts and talk to each other. It is not suggested however in relation this latter practice that there was any ensuing risk to safety to drivers or other personnel in the vicinity. The investigation also revealed that no ongoing training and instruction was provided to forklift drivers in relation to a procedure to be utilised when moving the forklift following conversation between drivers. No ongoing training and instruction was provided in relation to ensuring that drivers kept all parts of their bodies within the operator's cab of the forklift or that the forklift should not be moved while vision was restricted. Consideration

7 Mr McNally at the time of his fatal accident was 22 years of age. He had commenced working with the defendant on 16 October 2000 under a traineeship agreement with a labour hire company. The aim of the agreement was so that Mr McNally would complete his traineeship qualifications and achieve a Certificate II in Transport and Distribution (Warehousing and Storage). Prior to commencing work with the defendant Mr McNally had worked as a storeman and a process worker for other companies. Both positions had required the operation of a forklift. 8 Although Mr McNally was qualified as a forklift driver and had some experience in operating forklifts he was young and relatively inexperienced in the workforce. These two factors are encountered all too frequently in this jurisdiction, almost invariably in the context of workplace accidents and, tragically, often in the context of workplace fatalities. In addition the inherent hazards and dangers associated with the use of forklifts which are well known within the industry, only serve to highlight the serious risks faced by young workers working with forklifts and the need for the employer to ensure that employees can work protected from harm and without fear of injury. These matters in combination emphasise the seriousness of this offence. System of work

9 There was no safe system implemented which might have ensured that Mr McNally for example did not under any circumstances place any part of his body outside the cabin of the forklift. Mr McNally had received no relevant training, instruction or information in this regard. There was however clear indication in the BT Operators Manual of the dangers of placing one's body outside the forklift cabin. 10 According to the affidavit of Glenn Alexander Bisson, the defendant's Human Resources Manager, the BT Operators Manual was available for perusal by forklift operators. It was left inside the supervisor's office, Mr Wawn. This is hardly a satisfactory attempt on any view to ensure that the procedure is brought to the attention of the workers. It does not go beyond the setting down of the procedure on paper and takes no real steps to implement it, that is, ensure that the procedure is known by the intended beneficiaries and that those beneficiaries receive all necessary training instruction information and supervision. 11 Nevertheless it appears from the evidence given principally by Mr Bisson that prior to the offence the defendant had a comprehensive safety system which had been in place since at least 1982. In relation to safety measures concerning forklifts in existence prior to the offence the defendant had since February 1997 been using the reach forklifts because of their additional safety advantages which included a safer battery operation through sealed units; reversing beepers and flashing lights; a left safety pedal which required the operator's foot to be pressed down on it otherwise a warning beep would sound; and, a speed limiting function that was set to 10 km per hour. Moreover, the forklifts were regularly inspected and maintained to ensure that they were operating safely, in accordance with the requirements set out in the joint Australian and New Zealand Standard AS/NZS ISO 9001:2000 in relation to quality management systems. The system was revised in early 2001. Currently, it is available in electronic form on the defendant's computers. It has several core components. Training, for example, consists of a regime of safety inductions, on the job training and refresher training. When employees are inducted they are provided with a document entitled "Conditions of Employment". This document was created in 1997 and the practice of providing it to employees has been in operation since that date. Part 29.15 of the document concerns forklift operation and states:

Forklifts are only to be operated by licensed drivers.

Under no circumstances is a person to be elevated on the tines of a forklift truck.

Forklift drivers must always be aware of the presence of pedestrians and take due precautions to avoid collision. Always be sure that people are aware of your presence.

Never place arms or legs between the upright of the mast or the outside of the running lines of the truck. 12 Following the induction of new employees the system provided for job specific training. In relation to Mr McNally and Mr Baber both received training in the safe operation of the forklifts including the process of order picking at some stage after they commenced work in the warehouse. In addition, on 21 September 2001 Mr McNally received instruction in relation to general safety issues in the operation of forklifts. Part of Mr McNally's traineeship programme also included safety training using various modules entitled respectively "Operate a forklift" (received on 9/07/2001), "Pick and Process Order" (received on 9/07/2001) and "Follow OHS Procedures" (received on 28/08/2001). The defendant also had meetings twice yearly during which general warehouse and safety issues were addressed. Mr McNally and Mr Baber each attended at least one of those meetings. 13 An OHS Committee has also been operating on the defendant's premises since 1982. It generally meets on a monthly basis and considers safety issues which have been referred to it. It also plays a role in assisting in the formulation and monitoring of standards, practices, and procedures concerning the protection of workers' health and safety. 14 The defendant also regularly provided employees with information on OHS matters. One way of disseminating the information was through pamphlets. Another way involved placing notices on the notice board. A document dated 23 April 2002 entitled "Safe Operation Instructions for Driving Forklift Trucks" was placed on the notice board at some stage prior to the date of the accident. (A perusal of this document indicates that it contains no information about the risks associated with placing any part of one's body outside the forklift). 15 As part of its hazard identification procedure the defendant also regularly conducted safety audits. None of the audits undertaken prior to the accident had identified any safety issues in relation to forklifts. The defendant had in place a particular system for identifying workplace hazards in the warehouse which was along the following lines:

(1) If an employee becomes aware of a work hazard pertaining to forklift operation within the warehouse it should be raised with the immediate supervisor, who in turn should raise it with Mr Wawn. Alternatively, the employees can raise issues directly with Mr Bisson or Richard Wawn.

(2) If necessary, at the time of identifying a hazard relating to a forklift, employees can complete a Near Miss Report form.

(3) Mr Wawn has resolved many safety issues capable of easy resolution and completed a corrective action report.

(4) For more complicated matters, having regard to the complexity of the issue, the likely capital expenditure and other relevant issues, Mr Wawn may complete a Hazard Reduction Expenditure Proposal form. This form then goes to the General Manager and Finance Director for approval in accordance with the Company's capital expenditure approval process. 16 Prior to the accident a number of safety issues relating to forklifts had been addressed through the hazard identification process. These issues include:

(3) the erection of a number of signs in the warehouse in relation to safety matters;

(4) the separation of pedestrians and forklifts by the creation of marked lanes for forklifts separate to those for pedestrians;

(5) the erection mirrors on walls to assist traffic vision;

(6) warning beepers/lights on forklifts. 17 Other safety measures in place prior to the accident included signage placed around the warehouse warning personnel to "Watch Out For Forklift" or, "Caution Watch For Forklifts". 18 It is apparent from this evidence that the defendant had in place prior to the offence an impressive safety system both as to its extensiveness and as to its longevity. The existence of such a system and its implementation up to and at the time of the offence shows that the defendant took its occupational health and safety obligations seriously. This facilitates the ability of this Court to take this factor into account in the sentencing process by way of mitigating the otherwise objective seriousness of the offence. Risk to safety was reasonably foreseeable

19 The risk to safety in the circumstances of this offence was the risk of a crushing injury which arose when the forklift operator placed any part of his or her body outside the forklift. At the time of the offence the defendant had in its possession the BT Manual which specifically warned of this risk and cautioned the driver to, "always sit with the whole of your body inside the protective cab". In such circumstances I consider that the risk as characterised was both obvious and reasonably foreseeable. This renders the offence objectively more serious: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [81] to [82]. Deterrence

20 The youth and relative inexperience of Mr McNally must assume significance in the sentencing process insofar as they are considerations relevant to the application of general deterrence. Moreover, it has been recognised and acknowledged for a long time both by the industrial sector and in this jurisdiction that forklifts can be dangerous items of machinery. The principle of general deterrence is therefore relevant in order to inform other employers operating in similar industries of the need to ensure the safety of young and inexperienced workers who operate potentially dangerous machinery: see for example WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383 at 452. 21 Specific deterrence is also relevant to the defendant's circumstances. It continues to operate its warehouse utilising forklifts. It employs a large workforce of about 154 workers in premises operating 24 hours a day, 7 days a week, except for shut downs during Easter and Christmas. Availability of simple remedial steps

22 In my view the defendant was capable of implementing some basic remedial steps which could have or would have obviated the risk to safety. A system which specifically addressed the risk associated with exposing any part of one's body outside the cabin of a forklift and which focussed on the importance of maintaining safe operating distances between forklifts could no doubt have formed part of the defendant's extensive safety system, for example, by incorporating such steps into the training regime. The failure to have in place such elementary and easily implemented measures contributes to this Court's assessment of the seriousness of the offence. Gravity and consequences of the offence

23 Mr McNally sustained fatal injuries as the direct result of the defendant's failures to have in place safety measures specifically directed to ensure forklift operators remained inside their cabins and that safe distances were maintained between forklifts. In the circumstances of this offence which include the lack of such safety measures and the obvious and well recognised dangers associated with forklifts, I consider that the likely consequences of the defendant's breach to be of the utmost seriousness including the likelihood of fatal injuries. This also serves to emphasise the objective seriousness of the offence. Maximum penalty

24 The defendant faces a maximum penalty under the 2000 Act of $550,000. No prior convictions

25 The prosecutor during the sentence proceedings handed up a record of prior convictions which recorded two convictions in 1980 and 1981 respectively under s 27 of the Factories Shops & Industries Act 1962. No further details were able to be provided by the prosecutor as to the background to either of those convictions. Accordingly, I indicated to both parties that in view of the age of the convictions and the absence of any detail that I would give the convictions no weight in my sentencing considerations. I therefore proceed upon the basis that the defendant has no prior convictions and is entitled to leniency normally extended to an offender who is not otherwise adversely recorded. Early plea of guilty

26 The defendant submits, and the prosecutor concedes that a guilty plea was entered to the offence at an early stage. I accept that the plea of guilty was entered at an early stage. The defendant is therefore entitled to a discount of its sentence in accordance with the principals outlined in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104. 27 I consider that in the circumstances here an appropriate discount for the utilitarian value of the plea is twenty five percent. Contrition and remorse

28 The defendant is also entitled to a measure of leniency by virtue of its expressions of contrition and remorse. The entering of a plea of guilty at an early stage is a reflection of contrition which attracts leniency: Winchester (1992) 50 ACrimR 345 at 350. In addition the defendant in May 2003 designed a plaque and planted a magnolia tree in memory of Mr McNally. On the anniversary of Mr McNally's death the defendant also observes a minutes silence and invites Mr McNally's family to attend the premises in order to share the minutes silence with employees. Assistance to Mr McNally's family

29 The defendant also paid Mr McNally's funerals expenses and continued to provide his salary to his wife for six weeks following the accident. Counselling was also arranged by the defendant for Mr McNally's family members and other employees. A number of management representatives including Mr Bisson have kept contact with Mr McNally's family by way of personal visits and telephone calls. All these matters I take into account in the defendant's favour on penalty. Cooperation

30 The defendant fully cooperated with the WorkCover Authority during the course of the investigation by providing documents and making available company representatives for the purpose of interviews. These are also matters which will be taken into account in the defendant's favour on penalty. Post accident measures

31 Following the fatal accident to Mr McNally the defendant implemented a number of safety measures specifically designed to address safety issues associated with the operation of forklifts. These measures included the formation of a safety subgroup given the responsibility of rectifying potential safety hazards associated with forklifts, including the proximity of workers to areas where forklifts are operating. Improved inductions, refresher training, further safety inspections by external providers and the institution of forklift safety checks and forklift modifications such as the wearing of seatbelts on all counter-balance forklifts were all measures introduced after the accident which serve to mitigate the seriousness of the offence. Good industrial citizenship

32 The defendant also contributes to the wider community through its involvement with Macarthur Workplace Learning South Western Sydney Institute in the placement of work experience students and apprentices. It has also supported a number of local and international fund raising events including the Tsunami Appeal, the Deaf and Blind Society, St Vincent de Paul and the Lions Club. The defendant also expends significant sums to ensure a safe work environment exists for the protection of its workers. From July 2000 to June 2005 the defendant expended about $600,000 on occupational health and safety matters including spending on PPE, safety equipment and safety improvements. These matters illustrate the defendant's good industrial citizenship which will be taken into account in its favour on penalty. Penalty

33 In determining penalty against the defendant I have taken into account the objective seriousness of the offence, the subjective factors described above and the defendant's prior record which I have approached in view of the age and lack of detail of both convictions as if the defendant has no prior convictions. All of these factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A. Orders

34 In Matter No IRC 3252 of 2004 I make the following orders:

(1) The defendant Precision Valve Australia Pty Ltd [ACN 000 599 922] is convicted of the offence.

(2) The defendant is to pay a fine of $110,000 with a moiety thereof to the prosecutor.

(3) The defendant is to pay the costs of the prosecutor in the sum of $16,869.70. ______________________

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