1 Rail Corporation of New South Wales ("RailCorp") was established as a State owned corporation on 1 January 2004 under the Transport Administration Amendment (Railway Agencies) 2003 (the "Ámendment Act"). Under the Amendment Act, RailCorp was to operate railway passenger services and on 18 May 2005 that function included the operation of a RailCorp depot situated at 10 Old Springhill Road, Coniston.
2 On that day, a number of RailCorp employees were working at the premises including Mr Steve Olsen, Mr Glenn Coltman, Mr Wallace Cook and Mr Stephen Milgate. Mr Olsen was the team leader responsible for the supervision of nominated work gangs and the work associated with re-locating shipping containers at the Depot. On this day, Mr Olsen was not present but Mr Cook was acting in a supervisory capacity. In order to re-locate the shipping containers, RailCorp contracted Total Plant Services Pty Ltd to supply plant and equipment for this task. They were to supply a Volvo EL 70 loader/backhoe and a plant operator, Mr Brian Clark. In the course of moving a particular container on this day, both the hired loader/backhoe and a forklift driven by Mr Cook were used to lift and position the container. During this work, a jib attachment on the loader dislodged and in falling, struck Mr Coltman on the head and he received serious injuries.
3 This incident was investigated by the WorkCover Authority and in May 2007, Inspector Lancaster commenced proceedings in the Court alleging that RailCorp was in breach of s 8(1) of the Occupational Health and Safety Act 2000. After further particulars were supplied to RailCorp, a plea of guilty was entered on the third occasion that the matter came before the Court. This judgment deals with the evidence and submissions on sentence.
4 The particulars of the alleged breach of s 8(1) of the Act were as follows:
The defendant failed to ensure a system of work that was safe and without risks to health, in that the defendant:
(a) Failed to ensure that the systems of work for the relocation of shopping containers in and about the site were safe.
(b) Failed to ensure that the plant used in the relocation of shipping containers on the site was properly used, such as to not expose persons to risk of injury.
(c) Failed to provide such information and instruction as was necessary to ensure that the task of relocating shipping containers was done without exposing persons to risk of injury.
THE EVIDENCE
5 At the hearing the prosecutor tendered an Agreed Statement of Facts together with a factual inspection report prepared by Inspector Lancaster and a number of photographs of the site and the equipment involved, taken by the Inspector on the day of the accident or shortly thereafter. The prosecutor also tendered a document entitled "Metropolitan Network Diagram" as representing the Metropolitan Rail Area Map setting out the metropolitan rail area operated by the defendant as identified in s 3A of the Amendment Act. The Agreed Statement of Facts appears as an annexure to this judgment.
6 For the defendant, two affidavits were filed and read. The first affidavit was sworn by Mr Nigel Howlett, General Manger of RailCorp and the second affidavit was sworn by Ms Clare Kitcher, Group General Manager, Safety and Environment, a position held within RailCorp. Ms Kitcher's affidavit, amongst other things, dealt with the establishment of RailCorp and its operations. RailCorp had been established as a State Owned Corporation in January 2004 under the Amendment Act and staff and assets had progressively been transferred from both the State Rail Authority and the Rail Infrastructure Corporation ("RIC") since the Amendment Act had commenced. The operations of RailCorp were described as "extensive" with approximately 13,800 people employed across two registered businesses namely, CityRail and CountryLink. Both CityRail and CountryLink operations ran 24 hours a day, seven days per week.
7 The size of the operation was emphasised by reference to CityRail, operating a fleet of more than 1,500 carriages running on over 3,200 kms of track controlled by 2,500 signals, with approximately 2,500 weekday passenger services and 1,600 weekend services operating daily. CityRail services were estimated to conduct approximately 900,000 passenger journeys per weekday to and from 300 stations and there were approximately 281 million passenger journeys in the year 2006-2007. In relation to CountryLink operations, they involved a fleet of 60 XPT carriages, 19 power cars and 23 Xplorer carriages providing approximately 144 weekly rail services with approximately 560 weekly road coach services to 363 destinations. RailCorporation's operations encompassed a vast number and type of workplaces located throughout metropolitan and regional New South Wales including railway stations, rail tracks and rail depots.
8 Ms Kitcher provided a great deal of detail about RailCorporation's commitment to safety, how safety featured in its strategic plan and how that emphasis on safety was conveyed to its vast workforce, including those who were contracted. RailCorporation's safety policies were under constant review with RailCorp promoting an integrated approach to safety and environment management through its Safe Management System. Prior to the establishment of RailCorp, RIC used a Safe Management System made available to staff by use of a workplace safety manual. When RailCorp was established in 2004, the RIC's Safety Management System was adopted in those parts of the operation taken over by RailCorp while its own system was being developed. Coniston rail depot was a workplace at which the RIC's Safety Management System applied. In developing its own system, RailCorp targeted six areas and developed the system in 2004 with consequential changes being implemented in 2005. Workplace safety manuals remained the local occupational health and safety working instruction at all infrastructure depots during 2005, including the Coniston rail depot. From early 2005, RailCorp focused on simplifying the system and improving its workability at the workplace and reviewing the system against relevant legislation for compliance. This work took place during the latter part of 2006 and 2007. Ms Kitcher described the RailCorp Safety Management System as being a risk based integrated management system dealing with operational systems and occupational health and safety issues. The system consisted of 20 elements and included "various suites" of documentation such as system requirements, procedures, guides, forms and local instructions covering safe work method statements and safe work instruction. There were nine areas identified as key occupational health and safety priority areas that received particular attention in workplace risk management. All workers were able to access the system via the RailCorp intranet or in hard copy or by looking at a local workplace safety folder. All line managers were provided with safety systems training. In 2007 a training needs analysis was undertaken to identify those aspects of the system about which particular managers required more detailed knowledge based on their areas of responsibility and the type of work undertaken within those areas. Upon completing the analysis, the relevant line managers had been trained in specifically designed safety and training courses and that process was continuing.
9 The operation of the workplace risk register was explained and how those registers were prepared in consultation with workplace safety committees and safety representatives. The registers were available to employees and other workers and all were able to make contributions to the hazard assessment and incident prevention process. Ms Kitcher also explained how RailCorp approached safe work method statements, risk assessments and safe work instructions, the working safety handbook and the provision of site specific induction. In relation to training, RailCorp had a dedicated training unit.
10 Contractors to RailCorp were required to conform with those parts of the safety system that applied to the work on which they were engaged. In April 2007, RailCorp contractors were invited to attend a "contractor specific" safety convention where RailCorp communicated its safety expectations and provided a forum for discussion of relevant issues. Another contractor specific safety convention is proposed to be held during 2008. RailCorp had developed a contractor specific website that included a guide to working safely in the RailCorp corridor: it provided easy access to RailCorp policies, safety alerts and safety firsts and information about relevant parts of the safety system and a hazard location register. In 2006 and 2007 RailCorp had contacted its contractors requesting them to provide lost time injury frequency rate statistics and asking those contractors who had high figures to explain to RailCorp strategies they intended to adopt to reduce that frequency. RailCorp had offered to provide assistance to those contractors to achieve a reduction in injury frequencies.
11 It was explained that a "safety alert" was used to communicate to all workers across the organisation as quickly as possible any urgent safety related message that required or potentially required organisational change or identified an issue affecting the organisation as a whole. An example was advising of defective equipment to be withdrawn from use or warning of a hazardous work practice identified as a result of an incident. Employees were welcome to offer suggestions for inclusion in a safety alert. The "safety first" communication was used by a group or division of RailCorp to provide information to workers and was tailored to a specific workplace or work group. A safety first was communicated to staff by inclusion in monthly team group briefings and was also published on the intranet site. In addition all RailCorp workplaces had safety notice boards to carry a wide variety of safety information to RailCorp workplaces. There were over 100 safety practitioners assisting line managers to fulfil their occupational health and safety responsibilities. In December 2005, RailCorp had implemented a safety knowledge management system being a database housing risk profiles in relation to safety, environment and the RailCorp business generally, performance requirements, safety events and incidents, and, safety actions. The operation of the database was explained by Ms Kitcher.
12 RailCorp had an extensive assurance programme of audits and inspections, including internal, external and regulatory audits. The audit programme verified that the safety management system at all levels had been properly implemented and maintained, verified conformity with regulatory requirements, ensured that safety management systems met RailCorp safety policy including objectives and targets, improved safety performance and reviewed and monitored supply performance. It was said that the RailCorp audits were systematic, independent and documented. Ms Kitcher gave evidence about safety initiatives and programmes and explained the "just culture" programme designed to create an environment seeking out risks and promoting systems improvement through better incident reporting while promoting openness and learning from incidents. This was a behavioural change programme aimed at giving managers the skills to identify behaviours, correct "at risk" behaviour and reinforce positive behaviour, including incident reporting. As at December 2007, over 1700 managers and frontline supervisors had attended a two-day "just culture" workshop about how to support a just culture in the workplace from a safety operations and performance perspective. Approximately 600 additional managers/supervisors were expected to attend workshops that were to be provided later in 2008.
13 There were RailCorp initiatives to address staff health and fitness, including the implementation of a health assessment process for rail safety workers (with more than 4,500 health assessments being conducted in the last 12 months), the development of fatigue management arrangements, the development of an alcohol and other drugs programme (providing not only testing, but also establishing pro active measures communicated internally and externally to contractors to encourage staff to self identify problems and providing for rehabilitation programmes) and the organisation of health fairs and special health events, including free influenza vaccines.
14 In relation to industry generally, RailCorp was said to be actively involved in promoting rail safety principles throughout Australian railways, including its involvement in legislative reform programmes since 2004. RailCorp management had contributed to the Council of Australian Governments National Rail Safety Reform Programme and was a member of the Rail Industry Safety and Standards Board. The Board had been established to write national applicable standards and codes of practice and RailCorp was currently involved in a project to introduce an Australian wide Rule Book based on RailCorp's Rule Book on rail safety. RailCorp was involved in promoting Sydney passenger safety through assisting the State Transit Authority in developing systems for passenger safety by sharing information and advice about RailCorp's systems. The safety promotion was achieved in a number of different ways and involved not only employees but also contractors. These promotions involved a safety convention with the RailCorp Safety Convention winning the National Safety Council of Australia Award for best communication of safety messages in 2006. Approximately 1500 people attended the 2007 Safety Committee Convention. RailCorp held an annual safety competition across the whole organisation to promote a safe and healthy organisational culture. The competition recognised good safety performance. Approximately 800 people attended the competition in November 2007 with approximately 450 employees engaging in various competitions that took place on that day. Once every two years, RailCorp organised for the chairperson of its workplace safety committees to attend a forum aimed at facilitating networking and discussing the operations of such committees. The last forum was held in May 2007 over two days and staff had been encouraged to come forward with safety issues and concerns that could be effectively managed: there had been an increase in reports of safety issues between 2004 and 2007. RailCorp's lost time injury frequency rate had reduced considerably during this period. RailCorp continued to implement lessons learned from the train derailment at Waterfall with 83 of the 88 recommendations requiring RailCorp action by the Special Commission of Inquiry being fully implemented. In 2006 and 2007, RailCorp had received a number of awards recognising its commitment to occupational health and safety. From 2004, RailCorp had spent in excess of $30 million on dedicated safety initiatives and that figure did not include expenditure on ongoing delivery of safety risk controls such as equipment, maintenance and competency training or other operational initiatives or programmes.
15 In relation to the contribution by RailCorp to the community, Ms Kitcher stated that the corporation prided itself on being a good corporate citizen and contributing to the community. In relation to passenger rail safety, RailCorp had developed a programme to educate passengers about the importance of rail safety and the dangers of trespassing and had used a rail accident victim to promote the safety message in the community and in schools. In February 2008 RailCorp, along with the New South Wales Level Crossing Strategy Council, launched a safety education campaign targeting residents living close to railway crossings in the Illawarra and Hunter regions. The Corporation had implemented a "heat smart" promotion to educate passengers on how to travel safely during the summer months and through the "Pram Safety Project" had initiated a change to the national standards for brakes on prams so that it was now a design requirement for pram brakes to automatically engage when the handle was released. In addition, RailCorp was a committed supporter of various community events including Westmead Childrens Hospital Teddy Bears Picnic and annual NAIDOC celebrations. The Corporation supported the New South Wales Railway Band.
16 Mr Nigel Howlett was employed by RailCorp as General Manager, Commercial Renewals and had been employed in the railway industry for 29 years. Mr Howlett had previously been General Manager, Renewals with the RIC and subsequently employed by RailCorp with a title change in 2007 to reflect an increase in portfolio. In his role he was responsible for the supervision of approximately 1200 employees within the Corporation's Asset Management Group. The Assets Management Group was responsible for developing and maintaining the Corporation's infrastructure such as rolling stock, track, communications and control systems, structures, major projects, associated capital works, strategic works and strategic assessment management. In this position, Mr Howlett had overriding responsibility for occupational health and safety across the Commercial Renewals Division. Because of the size of the undertaking he relied on a team to keep him informed on all safety matters and there was a specialised team of 15 staff operated by his Safety and Quality manager. He explained that RailCorp employed a dedicated corporate safety group and he relied upon its advice. The team was led by Ms Kitcher.
17 Approximately 41 rail depots fell within Mr Howlett's area of responsibility. There were heavy plant maintenance depots where activities such as shunting were carried out, quarrying depots where aggregate was loaded on to rolling stock and gang depots where no shunting or rail work was carried out but operated as accommodation depots or provided a base for employees, together with basic storage facilities. Employees usually attended gang depots at the start and finish of their shifts and received team briefings and other communications at the depot site. The Coniston rail depot was a gang depot consisting of an administration building, storage shed and yard. That depot was used to store track related materials and other machinery, including gang trucks to support the Coniston team in delivering track related projects across the Sydney Metropolitan and Illawarra region as part of the Corporation's annual maintenance programme. While the gang's work started and finished at such depots, the majority of work time was spent on various project sites in the Greater Metropolitan and Illawarra area. As at March 2008, there were 33 employees based at the Coniston rail depot. RailCorp engaged labour hire workers and contractors to supplement its workforce and to meet work related demands or specific project requirements. Generally, ten to fifteen supplementary workers may be engaged at the Coniston Depot at any one time depending on the workload. At the date of the accident in May 2005, RailCorp employed approximately 34 people at the Coniston Depot: at the time of the incident four employees and one contractor were engaged in work at the Depot.
18 In relation to the accident, Mr Howlett expressed his deep regret for the incident and stated that he was committed to ensuring that such an incident did not occur again within RailCorp. RailCorp was at all times and continued to be committed to safety and to ensure the safety of employees and non-employees at work. He regarded safety as his number one priority.
19 Mr Howlett set out the duties performed by Mr Coltman as a fettler based at the Coniston Depot and noted that he had been employed by RailCorp or former rail agencies since 2000. Mr Coltman had been issued with a WorkCover Construction Induction Certificate and had completed several formal training courses in relation to the safe operation of plant and safe work systems and 14 such courses were identified in evidence. Mr Coltman's former work experience relating to the railways was also touched upon and Mr Howlett provided the training history of all the employees engaged at the Coniston Depot on the day of the incident.
20 With its wide use of contractors and plant hire, RailCorp had adopted a rigorous selection process. Two plant service managers had been engaged (including Total Plant Services Pty Ltd) and they ordered plant for RailCorp sites as required and ensured that the plant and equipment provided were adequately assessed, registered and that drivers had appropriate competencies where necessary. RailCorp undertook random auditing of the safety of such plant. The Corporation required all workers, including sub-contractors, to comply with its occupational health and safety systems and procedures as if they were employees. The Plant Service Managers, by the terms of their contracts, were required to ensure that employees and sub-contractors selected had the necessary skills, competence and experience to provide the services required and that they could do so with due care and skill.
21 In relation to the plant used on the day of the incident, Total Plant Services Pty Ltd had engaged TKR Contracting Pty Ltd ("TKR") to supply the loader/backhoe and an operator to assist in moving shipping containers at the Coniston Depot. RailCorp had used TKR many times and it was a proven plant provider, especially for the Coniston Depot. Mr Brian Clark was supplied by TKR to drive the loader/backhoe and he was regularly used at the Coniston Rail Depot because of his experience, expertise and the versatility of his machine. Because of that background, TKR was specifically requested by the Plant Service Manager to supply Mr Clark and his machine. At the time of the incident, Mr Clark had approximately 37 years' experience in plant operation. Mr Clark held competencies in A 27 vehicle load crane and C 24 forklift truck MAX 10T as well as front end loader skid steer excavator, front end loader/backhoe and forklift truck certificates. Mr Clark had completed a general occupational health and safety induction for construction work in New South Wales in accordance with the Occupational Health and Safety Regulation 2001 and held a Rail Infrastructure Corporation Induction qualification.
22 The safety management system in operation at the time was explained by Mr Howlett and he emphasised that the system necessitated a risk assessment of the process being undertaken prior to the job being undertaken, and that it be documented in a Safe Work Method Statement for regular repetitive tasks or a Job Safety Analysis for a one-off task. The hazards control identified from this risk assessment should have been briefed to staff at the commencement of a shift in a pre-work briefing. Prior to any work commencing on site, a daily plant inspection should have been carried out and documented. There was a "working safely" toolkit available to employees at the site which was a quick reference guide to common safety procedures and there was also the RIC safety manual.
23 In compliance with the safety management system, a number of steps were taken in relation to the movement of the shipping containers at the Coniston Depot. The Plant Service manager had satisfied himself that TKR had adequate safe work systems for the work task and TKR had in operation its own occupational health and safety policy and a written procedure for changing the attachments to the Volvo EL 70. Mr Clark, on behalf of TKR, completed a pre-job plant inspection checklist and that included a Safe Work Method Statement signed by Mr Clark. As part of its audit processes, RailCorp inspected the loader/backhoe used on the day of the accident on two separate occasions (13 October 2004 and 4 February 2005) to assess its suitability for hire. On both occasions, the plant was deemed suitable and recommended for hire. As part of its annual inspection schedule for its own plant, the RailCorp forklift in operation at the incident was inspected on 28 September 2004. The forklift was serviced in November 2004.
24 Mr Howlett then gave details of the immediate corrective actions taken by RailCorp after the incident. The Corporation's Safety and Quality manager attended the depot with incident management and the use of the forklift and loader/backhoe was suspended. The forklift was not used again until it was checked and confirmed safe for use by consulting engineers. RailCorp required TKR to have its jib inspected and in turn, TKR engaged an external company to inspect the jib and certify that it was satisfactory for use. A risk assessment was conducted by the Depot manager involving two RailCorp safety co-ordinators relating to the task of moving the shipping containers. Before further work was undertaken to move the shipping containers, RailCorp engaged an external company to conduct a structural engineering inspection of the shipping containers to certify that they were structurally sound. As a result a report was supplied and confirmed that the containers to be moved were structurally sound and could be moved by using a side-loading system. RailCorp then made enquiries of specialist contractors as to whether they were able to supply a side-loading system and enquired about their safety systems. RailCorp was satisfied that a specialist contractor, Whytes Heavy Haulage, had the appropriate equipment and safety systems to undertake the work and that company was engaged to move the shipping containers using a Hammer 195 side loading system. A Safe Work Method Statement specific to the task of re-locating the shipping containers was developed by the Depot manager with the assistance of two RailCorp safety co-ordinators.
25 Medium term action taking by RailCorp involved the appointment of dedicated project managers for Depot improvement projects targeted towards occupational health and safety improvements from June 2005; all team leaders, work group leaders and team managers attended a series of safety conventions from July 2005 to July 2006; and within three months of the accident, the team at Coniston Rail Depot led by the Depot manager had an open discussion and consultation session on the way to prevent a recurrence of the incident and incidents generally.
26 After the incident, RailCorp assisted Mr Coltman by referring him for occupational therapy assistance, including daily living skills and home assessment, initial rehabilitation assessment, counselling, medication, return to work assistance, functional capacity assessment and workplace assessment. Mr Coltman was also referred for pre-intervention assessment (being a six-week exercise based programme to increase physical work tolerance and permit a return to pre-injury duties) and workplace strategies in order to reduce spinal stress and the risk of re-injury. RailCorp Track Works manager and Safety and Quality manager visited Mr Coltman at home and during these visits arranged for a plumber to fit an extension to the shower hose in Mr Coltman's bathroom, arranged for physiotherapy treatment to be provided to him, supplied a specialised bed for Mr Coltman and arranged for gardening to be attended to at his home. The day after the incident, Coniston Depot employees were briefed by the Depot manager and a Divisional Safety Co-ordinator regarding the incident and Mr Coltman's welfare as well as the importance of vigilance in the workplace regarding workplace hazards. Employees at the Depot were kept regularly informed about Mr Coltman's condition and well-being and this also occurred at monthly team meetings. The Corporation offered trauma counselling to its employees based at the Depot.
27 Mr Howlett stated that the incident and learning from the incident were communicated to the workforce at the June 2005 Occupational Health and Safety Committee meeting and were communicated to the team as part of the monthly team briefings. In the normal course of work of the Corporation, all incidents were reported and discussed at various forums throughout RailCorp, including at senior levels and this occurred in relation to this incident.
28 Mr Howlett added to the evidence of Ms Kitcher concerning the development of safe systems of work by RailCorp. In speaking of the Corporation's commitment to safety it was noted that, as a result of the accident, significant steps had been taken to improve safety management systems across rail depots. Those steps included the holding of monthly depot safety inspections, the refinement of depot evacuation procedures including practice drills, the introduction of a staff safety hazard reporting system covering all work sites including depots, and, a clear identification and allocation of safety responsibilities including first aiders, fire wardens, depot manager and tool and equipment managers.
29 The safety committees had been re-structured in their operations and responsibilities with the introduction of a peak divisional committee comprising the chairs of all other depot committees and dealing with general and common issues. There were 12 other committees structured along process lines and those processes were identified. Workers were continually reminded to report all workplace hazards, incidents and near misses as a requirement of the Corporation's safety management system and a safety hotline number had been established to assist such reporting. A hazard identified and reported was inserted into the safety management database and allocated a risk profile identifying the period of time in which the hazard must be rectified and identifying a person responsible for that rectification. A hazard not rectified in the nominated time frame proceeded through the management hierarchy. In the Commercial Renewal divisions, there was a 24 hour/7 day "assistance line" staffed by safety professionals giving advice and guidance on safety issues.
30 In dealing with RailCorp safety and induction guidelines, Mr Howlett confirmed evidence given by Ms Kitcher and noted that there was a general induction given to new employees outlining general safety management processes and the safe work method statements and pre-work briefings. Employees, contractors and visitors were to receive a general safety induction and a site-specific safety induction before commencing any work at RailCorp workplaces. The rail industry safety induction covered specific hazards and those inductions were delivered at the training facility located at Petersham. The WorkCover Construction Industry certificate (previously known as "the green card") was mandatory under the Occupational Health and Safety Act and was provided to employees who undertook construction work. There was a job specific induction, also know as pre-work briefings, where employees were taken through the safe work method statements and safe work instructions applying to the work they would be performing, together with any site job specific hazard.
31 In relation to training, Mr Howlett stated that the Corporation had recently completed a competency profile of every employee of the Commercial Renewals Division and identified which of the 41 available training courses were required to be undertaken by each employee. The Corporation was measuring and monitoring progress of training completion and there was currently a 54 per cent completion rate for an overall requirement of 6.500 courses. Mr Howlett also spoke of auditing being carried out at rail depots by internal and external auditors and described how they were carried out within the RailCorp operation. Results of audits were made available to line managers and other relevant personnel with required actions entered into a database for tracking and to secure agreed action to reduce the level of risk as far as practicable.
32 Reference was made in Mr Howlett's evidence of the safety convention aimed to raise awareness of safety issues amongst employees. The Corporate Safety Division in the past few years had conducted a safety convention for key managers and in addition, the Commercial Renewals Division conducted its own safety conventions. A safety recognition programme was part of the safety conventions with nominations for best safety initiatives being submitted by line managers to a central judging committee for consideration. The nominees and the ultimate winner were recognised at the combined safety conventions. RailCorp conducted a safety reward system, rewarding staff teams for positive safety performance. There were other recognition programmes from time to time such that during February and March 2006, the Commercial Renewals Division conducted a depot competition for the best depot with a view to promoting and encouraging depot improvements. The competition results were based on an independent safety audit of all depots by an audit team from Corporate Safety. In addition, the Commercial Renewals Division had commissioned a series of near miss DVDs involving staff who had been involved in near miss incidents in order to raise awareness of issues. The DVDs were presented to staff at team briefings and were available to all RailCorp employees on the intranet. Each team depot, where team briefings were held, had a television and a DVD player available for this purpose. Approximately 1200 employees within the Commercial Renewals Division were required to attend a monthly team briefing where safety was always the first item on the agenda. Mr Howlett briefed his own direct reports and administrative staff while staff at depots were briefed by depot managers. The Division regularly produced a newsletter in which Mr Howlett wrote the editorial and safety was always stressed.