· The defendant did not provide any directions or instructions to its employees not to handle, move or use, or to assist in the handling, movement or use of Graincorp's equipment, including the mobile augurs, used from time to time, to load trucks at GrainCorp's depots, including the Boree Creek Depot.
27 The failures identified by the prosecution certainly provide a measure of the objective seriousness of the offence. However, it is also relevant to take into account the following matters:
(1) The risk arose at Graincorp's site and involved Graincorp's equipment. The auger had no notice attached to it warning of its propensity to "up-end".
(2) Graincorp did not provide a site induction to visiting truck drivers that included instructions regarding dangers associated with the instability of the mobile augers used from time to time to load grain into trucks at Graincorp's depots, including the Boree Creek depot.
(3) There was no evidence the defendant was aware of the dangers of the auger toppling over.
(4) The defendant's employees had not previously loaded trucks in the manner that occurred on 16 October 2002 and the defendant's drivers were not usually involved in the loading operation.
(5) The assistance provided by the defendant's employees in attempting to move the auger was a spontaneous event and not a developed practice.
28 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty (1999) 92 IR 8 at 27. The standard of foreseeability is objective but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable: Kembla Coal & Coke at 27.
29 The defendant was aware of the use of mobile augers to load trucks on farms but it was not aware that Graincorp would use a mobile auger at its Boree Creek depot. The defendant's expectation in sending the truck to Boree Creek was that it would be loaded in the usual way via an automated fixed outlet spout or by the use of a front-end loader. The defendant was not advised otherwise. That is a consideration to be taken into account in the defendant's favour. However, given the absolute duty imposed on an employer to ensure safety, the question is not so much whether the risk of an employee being struck by the mobile auger was reasonably foreseeable. Rather the question is whether it was reasonably foreseeable that in sending employees to remote sites there was a risk of injury or death from the employees becoming involved in handling machinery or equipment with which they were unfamiliar and in respect of which they had received no training or instruction in circumstances where they had not been instructed to refrain from handling such machinery or equipment. The ordinary jury person or reasonable observer would have to answer in the affirmative.
30 It would not have been difficult for the defendant to avoid the risk. An instruction to its employees that required them not to handle any customers' equipment and, in particular, equipment with which they were unfamiliar and in respect of which they had received no specific training or instruction from the defendant would have reduced or obviated the risk. I note that following the incident the defendant instructed its drivers not to involve themselves in the handling, movement and/or use of loading equipment located within its customers' depots.
31 The consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. In this case, Mr Stone suffered serious injuries thereby reflecting the seriousness of the risk of exposing employees to the dangers involved in handling customers' equipment and machinery without adequate training or instruction.
32 There are proper grounds for including in any penalty an element for general deterrence. This case is an unfortunate illustration of the risks that employees may be subjected to if they handle machinery and equipment with which they are unfamiliar and in respect of which they have had no instruction or training. Whilst the ethos of lending a helping hand might generally be one to be encouraged that is not the case where it might involve placing employees at risk of injury or even death.
33 It is appropriate that I also include in the penalty an element for specific deterrence. In light of the measures taken after the incident in October 2002 to improve its occupational health and safety procedures and its otherwise very good record, I consider the risk of the defendant re-offending is small. However, as the Full Bench noted in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [77] it is unlikely that the weight to be attached to specific deterrence could be reduced to zero. Where the offender continues to be an employer, risk to safety or its employees or contractors may exist or be possible. It is appropriate to remind the defendant of the need to maintain constant diligence and take all practical precautions to ensure safety in the work place.
34 There are a number of relevant subjective considerations. Firstly, the defendant entered an early plea of guilty and any penalty should be reduced by 25 per cent for the utilitarian value of that early plea. Secondly, the defendant is also entitled to a discount with respect to its co-operation with the WorkCover Authority in its investigation of the subject incident. Thirdly, the defendant provided assistance to the injured worker. Fourthly, the defendant is entitled to the benefit of recognition of its good industrial citizenship exemplified by its good record over the past 53 years.
35 I have also had regard to the fact that the defendant is a relatively small family company, important to the local community and affected by the drought and rising fuel costs.
36 The benchmark against which I am required to measure a penalty in this case is the maximum penalty of $550,000. That is a very significant penalty but it reflects the seriousness with which the legislature views breaches of the occupational health and safety laws.
37 Having taken into account all of the relevant considerations it is impossible to view the defendant's breach as warranting a high penalty. Accordingly, I consider an appropriate penalty should be at the lower end of the penalty range. I fix a penalty of $55,000.
Orders