(2005) 215 ALR 213(2005) 228 CLR 357
Morrison v Powercoal Pty Limited [2003] NSWIRComm 416(2003) 130 IR 364
R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383
Judgment (1 paragraphs)
[1]
Judgment
1This prosecution is brought by Inspector Amanda James of the WorkCover Authority of New South Wales against the Roads and Traffic Authority of New South Wales ("the RTA" or "the defendant") under s 10(1) of the Occupational Health and Safety Act 2000 ("the Act") by way of an amended Application for Order.
2It is alleged the defendant on 1 May 2008 contravened s 10(1) of the Act in that it failed to:
by its acts or omissions ... ensure that the premises were safe and without risks to health to people who were not the defendants employees, and in particular Kevin Finnemore, David Ball and Ratko Ivanovski ...
In particular:
...
( a) ...
(b) ...
(c) ...
...
The 'work' referred to involved excavation work and the removal of excavated material associated with road widening works at the premises.
The 'risk' was the risk of injury to people working at the premises by being struck by moving vehicles.
The defendants 'place of work' was the premises.
The defendants 'undertaking' was, amongst other things, to conduct road widening and related works at the premises.
Inspector James v Roads and Traffic Authority of New South Wales [2011] NSWIRComm 27 | Case summary | Zoe
The people who were exposed to the risk were Kevin Finnemore, David Ball and Ratko Ivanoski.
(a) The defendant failed to have a spotter or observer to coordinate the safe movements of prime movers with attached trailers at the premises.
(b) The defendant failed to have a dedicated communication system to alert employees when the prime mover and attached trailer were ready to leave the exclusion zone in accordance with Code of Practice 2004 for Moving Plant on Constructions Sites whilst work was being performed at the premises.
(c) The defendant failed to ensure that traffic was managed by a licenced traffic controller whilst work was being performed at the premises.
(d) The defendant failed to ensure that separation was maintained between moving traffic and pedestrians at all times, so that persons were not at risk of being struck by moving trucks with trailers whilst work was being performed at the premises.
(e) The defendant failed to ensure that the speed limit was reduced to 40 km per hour at the premises when work was being performed at the premises.
(f) The defendant failed to have a procedure in place in respect of cleaning works in relation to earth removal works whilst work was being performed at the premise.
(g) The defendant failed to have a site specific traffic and pedestrian management plan, in particular, for prime movers with attached trailer entering and leaving lane 3 at the premises whilst the work was being performed at the premises.
(h) The defendant failed to undertake a risk assessment that identified and considered the means of controlling the risk when not using a spotter to coordinate the safe movement of plant and vehicles within the exclusion zone whilst the work was being performed at the premises.
(i) The defendant failed to provide such information, instruction and training to people undertaking work at the premises by not ensuring that there was:
(i)to be a safe distance between employees and vehicles (including trailers) at all times; and
(ii)a spotter or observer present when people were working within three metres of moving plant in accordance with the RTA tip sheet when working within three metres of moving plant.
As a result of the defendants failures as particularised above people who were not the defendants employee were exposed to the risk
9.The injuries sustained by Kevin Finnemore were a manifestation of the risk.
3The defendant pleads guilty to the charge.
4Mr R Reitano of counsel appeared for the prosecutor and Ms P E McDonald SC appeared for the defendant. The prosecutor relied upon: amended Application for Order; agreed Statement of Facts; Factual Inspection Report of Inspector Amanda James dated 12 May 2008; Factual Inspection Report of Inspector Anthony Nicholson dated 12 May 2008; WorkCover photographs 1 to 4 of scene of accident taken by Amanda James, dated 1 May 2008; NSW Police - 32 colour photographs of scene of incident taken by Constable Nathaniel Norsa; Australian Standard 1742.3-2002 Manual of Uniform Traffic Control Devices Part 3 Traffic control devices for work on roads; WorkCover Code of Practice Moving Plant on Construction Sites 2004; WorkCover Safety Alert Moving Plant on Construction Sites - 29 December 2006; a Prior Conviction Report.
5The defendant relied upon an affidavit of Ms Elizabeth Tosti, General Manager OHS, Roads and Traffic Authority of NSW and attachments outlining existing RTA site safety procedures.
6There was an Agreed Statement of Facts which relevantly reads:
Background
The RTA had the capacity to approve and assign to external contractors work to be carried out on public roads within the State of New South Wales.
Section 46(3) of the Transport Administration Act provides that "the RTA cannot employ any staff." The note immediately following this section states:
Note. Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the RTA to exercise its functions.
Section 4A of Chapter 1A of the Public Sector Employment and Management Act 2002 provides that:
The Government Service of New South Wales consists of those persons who are employed under this Chapter by the Government of New South Wales in the service of the Crown.
In this regard, the following persons were on 1 May 2008 employed by the Government of New South Wales, in the service of the Crown: Craig Watson as Acting Works Assistant; Raymond Eaton as Works Supervisor; Ratko Ivanovski as Team Leader; and David Ball as a Road Worker.
The Epping Road Project
The RTA was the principal contractor for road works located at the intersection of Epping and Herring Roads at Macquarie Park NSW. The project formed part of improvement works for the Bus corridor 9, one of two corridors that connect Parramatta with the City.
The works for the Project included the following:
extension of the double turning bay from Epping Road into Herring Road by approximately 300 metres; and
narrowing of the existing grass median strip.
The grass median strip was approximately eight metres wide and divided six lanes of traffic into three eastbound lanes and three westbound lanes.
On 8 April 2008 the RTA obtained Road Occupancy Licences No 132151 and 132152 to permit them to undertake the road works at Epping Road. The licences permitted the closure of one lane in both eastbound and westbound directions, between 10:00am and 3:00pm weekdays and 8:00pm to 5:00am on weekends during the period 1 and 31 May 2008.
At the commencement of the Project, the RTA subcontracted Terra Civil Pty Ltd ("Terra Civil") to provide earthmoving equipment, perform excavation works and remove excavated material from the site. Terra Civil employed Emilio Spinozzi, Adamo Spinozzi and Frank Antonizzio to conduct works at the site on its behalf.
Terra Civil operated two prime movers with attached trailers which were used to remove excavated material from the site. Adamo Spinozzi operated a silver coloured freightliner prime mover registration TRA 025 with an attached dog trailer registration U10129. Frank Antonizzio operated the second freightliner prime mover registration TRA 024 with an attached dog trailer registration TRA 024. Emilio Spinozzi operated a Hitachi excavator registration 75381-C.
The RTA subcontracted Online Concrete Sawing Pty Ltd ("Online Concrete Sawing") to provide a water cart and a water cart operator for the project. Online Concrete Sawing were paid hourly for the provision of a water cart and they supplied a plant operator. Online Concrete Sawing employed Kevin Finnemore to conduct works at the site on its behalf.
On 29 October 2009 Online Concrete Sawing changed its name to South Coast Excavations Pty Ltd.
The RTA subcontracted Split Bobcat Services Pty Ltd ("Spilt Bobcat") to operate a bobcat to skim and level the median strip for construction. Spilt Bobcat employed Gregory Barnes to perform services at the site.
Incident
On 1 May 2008 at approximately 7:00am, immediately prior to the commencement of works, RTA workers closed lane 3 of Epping Road. Lane 3 is the lane closest to the median strip. Lane 1 is the lane closest to the kerb. Lanes 1 and 2 were left open for morning traffic. Orange witches hats were placed down the dividing line between lanes 2 and 3 to mark out the 'closed' lane.
The normal speed limit along Epping Road is 80km. This speed limit remained enforced whilst works were being undertaken.
Water filled safety barriers were installed at the site, by the RTA commencing at the intersection of Herring and Epping Roads and ran in an eastbound direction for a distance of approximately one kilometre. The water filled safety barriers were tied together and separated the median strip (where the excavation works were being undertaken) from lane 3 of Epping Road.
Prior to the incident there had been significant rain in the area and as such the water cart services provided by Online Concrete Sawing were not required. Ratko Ivanovski requested that Kevin Finnemore remain on site to assist with work which was outside the scope of his contracted duties in particular, cleaning up dirt that had fallen into lane 3, however he did not communicate this request for additional work to the management of Online Concrete Sawing.
On the day of the incident both David Ball and Kevin Finnemore had moved orange safety cones in the closed lane (lane 3) to allow the Terra Civil prime movers to enter the closed lane. They then placed the orange safety cones back in a position to cordon off the lane to passing motorists. Access to the closed lane was obtained by crossing the water filled safety barriers. At times during the morning Kevin Finnemore was in the closed lane clearing dirt and debris off the road that had fallen whilst excavated material was being transferred into the trailers so as to remove it from the site.
Emilio Spinozzi, Adamo Spinozzi and Frank Antoniazzio commenced work at approximately 9am. Emilio Spinozzi was operating the excavator to excavate the existing median strip. Adamo Spinozzi together with Frank Antoniazzio were operating two prime movers with dog trailers to transport the excavated material away from the site.
Immediately prior to the incident:
(a) David Ball was spotting for the excavator operator, in the grass median strip, cleaning dirt from the jersey curb and existing median strip;
(b) Adamo Spinozzi's prime mover licence plate TRA 025 and the attached dog trailer licence plate U10129 were parked stationary in lane 3 adjacent to the water filled safety barriers whilst being filled up with excavated material from the median strip.
(c) Kevin Finnemore was assisting Ratko Ivanovski move the Geotech material along water filled safety barriers and was cleaning dirt off the road in lane 3. Kevin Finnemore was holding the material at one end and Ratko Ivanovski holding the material at the other. Ratko Ivanovski was standing on the water filled barriers dragging the Geotech material uphill in a westerly direction whilst Kevin Finnemore was manoeuvring this to at the opposite end.
Geotech was used at the site primarily to protect the white and orange water filled safety barriers from dirt getting caught in the crevices of the barriers. The Geotech material was estimated to be approximately 20 metres in length similar to the combined the length of the prime mover and dog trailer. The weight of the material is unknown.
Emilo Spinozzi used the excavator to move the excavated material from the median strip into the trailer attached to the prime mover operated by Adamo Spinozzi, so that it could be removed from the site. At some time during this process Adamo Spinozzi left the cabin of the prime mover to check on the gauge of the trailer. The gauge is located on the side of the trailer and indicates when the trailer is at capacity.
When the trailer of the prime mover was at maximum capacity, Adamo Spinozzi advised Emilio Spinozzi he was going to depart. As he moved towards his prime mover Adamo Spinozzi observed Kevin Finnemore in lane 3 and he waved to Kevin Finnemore as a signal for him to stop and made eye contact with him. However there was no verbal communication by Adamo Spinozzi to advise Kevin Finnemore that he was to depart.
Around this time Frank Antoniazzio entered the site in his prime mover and pulled up approximately five to ten metres behind the prime mover that was being operated by Adamo Spinozzi. Whilst Adamo Spinozzi's trailer was being loaded with excavated material Frank Antoniazzio observed Kevin Finnemore walk in front of his prime mover with a shovel in his hand and proceed around the side of Adamo Spinozzi's truck where he scooped up dirt which had fallen onto the road. Frank Antoniazzio then observed Kevin Finnemore walk down in an eastbound direction along the passenger side of Adamo Spinozzi's truck.
At approximately 1:00pm Adamo Spinozzi drove the prime mover away from the stationary position heading east bound on Epping Road. As he released the brakes and took to gear Adamo Spinozzi noticed a hard hat in the corner of his eye and heard a scrapping sound along the ground.
Emilio Spinozzi observed Adamo Spinozzi enter the cabin of the prime mover. He then commenced noting the truck times in the logbook, taking his eyes off the prime mover and the closed lane. When he looked up he saw some boots on the road after the prime mover had driven off. He stepped up onto the barricade and saw Kevin Finnemore on the road.
Emilio Spinozzi crossed over the water filled safety barricades to check on Kevin Finnemore and began dialling 000.
David Ball was spotting for the excavator operator only metres away from the incident, and as such he was looking at the excavator. therefore, he did not see Kevin Finnemore and was alerted to the incident by the screams of Emilio Spinozzi. Once he became aware that something had occurred he jumped the water filled safety barriers and went to Kevin Finnemore about 10-15 seconds after the incident. When he reached Kevin Finnemore he checked his breathing and heartbeat and felt nothing. As there were pedestrians in the vicinity, David Ball grabbed the geotech material which was laying across the water filled safety barriers and covered Kevin Finnemore.
Ratko Ivanovski ran over to where Kevin Finnemore was laying on the ground. Gregory Barnes rang Raymond Eaton the site supervisor to advise him of the incident then to call 000. Mr Eaton was in the site office, which was approximately 100 metres from the incident site.
Raymond Eaton left the office and attended the incident site. A short time later ambulance and other emergency services arrived at the site.
Systems of Work Prior to the incident
RTA Traffic Control at Work Sites Manual
The 'RTA Traffic Control at Work Sites' manual, ("TCWS") Issue 1, dated September 2003, provided guidance for the implementation of safe working practices and traffic control measures with respect to traffic movement around works sites and entering/leaving works sites, prior to the incident. The RTA manual was mandatory on all RTA roadwork sites and dealt with Traffic Control Plans and Vehicle Movement Plans.
Section 2.3, headed 'Definitions', defined a Traffic Control Plan ("TMP") as:
i. " A diagram showing signs and devices arranged to warn traffic and guide it around, past or, if necessary through a work site or temporary hazard. The TCP shall detail the location and lengths of all tapers, all pavement marking and delineators, any containment or safety fencing, flashing arrow signs, portable traffic signals, variable message signs, roadwork speed zones, pedestrian routes and any other devices required for guidance at the work or hazard site."
Section 2.3, headed 'Definitions', defined a Vehicle Movement Plan ("VMP") as:
"A diagram showing the preferred travel paths for vehicles associated with a work site entering, leaving or crossing through the traffic stream. A vehicle movement plan should also show travel paths for trucks at key points on routes remote from the work site such as places to turn around, accesses, ramps and side roads. A VMP may be combined with or superimposed on a Traffic Control Plan."
Section 3.6, headed of The TCWS 'Safe Clearances between workers and through traffic', provided guidance for the implementation of safe working practices to prevent injury to workers due to hazards within the works site, the protection of workers from oncoming or passing traffic and the protection of road users from hazards within the work site. However, this section did not provide guidance for the implementation of safe work clearances between workers and mobile plant within the works site.
Section 7.1 of the TCWS headed 'Responsibilities of Drivers' it was noted that drivers bore the responsibility of driving safely and in accordance with both the road rules and any existent Traffic Movement Plan ("TMP").
It was further noted within Section 7.1 that special care was necessary when entering and leaving traffic streams and turning in conjunction with works on roads.
Section 7.4 of the TCWS provided that:
"when planning road works, attention shall be given to ensuring that traffic associated with the works can safely manoeuvre to and from traffic streams, turn at work areas, depots etc and turn around. This includes:
gang trucks;
trucks carrying materials;
works supervisors trucks etc."
This section does not provide for the safe manoeuvre within work sites of mobile plant or traffic associated with road works
The RTA TCWS manual contained numerous samples of Traffic Control Plans. For this project, the RTA utilised Traffic Control Plan No: 94 ("TCP") found in the RTA TCWS version 3.0 dated September 2003. The TCP outlined the methodology that was to be implemented and utilised whilst the works were being undertaken. . The TCP used at the site was adopted directly from the TCWS manual without any modification to reflect the activity being undertake at the site.. The TCP made no provision to the reduction of speed limits, mobile plant or worker movements within the site, the need for a traffic controller and trucks entering and exiting the site.
The RTA Project Engineer, Branimir Curic, drafted the VMP that was in use at the site. The plan outlined the roads that the trucks containing the excavated waste material were to use to enter and exit the site.
In addition the RTA issued WorkOrder No:003 WBS No W/20145E9 Excavation and Disposal of Material at Various Locations Within Sydney Regions Contract No 07.2231.505 to Terra Civil. It specifically stated that Traffic Control would be provided by the RTA, if required.
The RTA TCWS also made provision for speed zones in road works undertaken and required that the speed limit should be reduced to 40km where workers on foot or in plant or both are within 1.2 metres of traffic with no intervening physical barrier or are working within a trafficked area.
The regular speed limit along the relevant stretch of Epping Road was 80 km per hour. A water filled barrier separated lane 3 from the median strip. No physical barrier was in place between the closed lane three and the remaining two open lanes of traffic. All that identified that lane 3 was closed for road works were orange witches hats and signage as indicated on the TMP. At the time of the incident, the speed limit was 80km per hour and had not been reduced. The work area was between 1 to 3 metres from operational road traffic.
Risk assessment and safe work method statements
Preceding the commencement of the project the RTA had formulated a site specific Road Services Management Plan dated 23 March 2006 version 2.0. from the RTA pro forma Road Services Management Plan ("RSMP"). The RSMP served as a base document for the management of all roadworks and related projects undertaken by the Road Services Unit of the RTA. This plan contained material regarding the contractor's contracts, the site plans, safe work method statements and the legislation to be complied with.
On 15 April 2008 an RTA Project Team undertook an Ensite risk assessment of the site which evaluated the OHS and Environmental hazards associated with the site. The Ensite risk assessment identified the following hazards at the site:
a) accident caused by trucks entering, exiting a worksite; and
b) struck by passing vehicle while working in close proximity to traffic
The Ensite risk assessment outlined the method in which employees were to cross the road, this included employees crossing at signalised pedestrian crossings with no jay walking. This did not occur as employees routinely accessed the median and the closed lane by jumping the water filled safety barriers. The Ensite risk assessment did not identify the risk or workers working within 3 metres of moving plant and consequently did not have in place a site specific risk assessment which identified vehicle/mobile plant movements within the site as a hazard. (subject to the defendant's objection on the grounds of relevance)
The RTA Site Information Package for Bus Corridor 9 Improvement 42 Epping Road and Herring Road issue number 1.0 dated 11 April 2008 point 39, stated that
ii. " work should not be carried out within 3 metres of mobile plant (this includes within 3 metres of any moving plant, such as the bucket of an excavator). If this is not possible the Team Leader appoints a suitably qualified person to be the 'safety observer' (spotter). "
The RTA undertook site induction training for all employees and subcontractors working at the site. Craig Watson Acting Project Quality Assurance Manager conducted the training. The induction package covered a site information package, environmental issues, the VMP and TCP that were in place at the time of the incident. However, it was not a requirement that all workers be inducted into all aspects of the training package. Adamo Spinozzi, Emilio Spinozzi and Frank Antoniazzio were all inducted into the site information package and VMP and were not inducted or informed of the TCP. When asked about their induction all three recalled being inducted to the VMP but did not recall the site induction package and or the specific requirement not to work within 3 metres on moving plant and the need to have a spotter.
The RTA ensured that all employees and subcontractors had completed the Construction induction certificates to enable them to work in the construction industry. The RTA ascertained a copy of Kevin Finnemore Construction induction certificate, which Kevin Finnemore completed on 14 March 2008.
Craig Watson was also responsible for performing quality checks and ensuring that workers adhered to Safe Work Method Statements. He did this through undertaking site inspections at the roadworks. At the time of the incident there had not been any previous non-compliance issues reported for action to Craig Watson in relation to the site or individuals on site.
RTA employees and contractors were briefed on the tasks required for the site via toolbox meetings in the mornings. During these toolbox meetings employees and contractors were provided verbal directives on what work tasks they were to complete and any relevant safety information required for the site.
At the time of the incident the RTA had developed a safe work method statement (SWMS) which addressed the traffic control setup using stationary equipment for short and long term works. However, the SWMS did not address the activity of closing traffic lanes and establishing confined working areas as "no go zones" for construction activities in the vicinity of moving plant and vehicles. Furthermore the SWMS failed to address the potential risks associated with not using a spotter to coordinate the safe movement of plant and vehicles within the no go zone.
In addition the RTA had published a document titled Tip sheet for Working on foot in proximity to moving plant dated March 2006. This tip sheet outlined the safety controls for both exclusion zones and spotters/observers. It stated
" as a general rule, workers are not to work within 3 metres of moving plant or within the area of revolving plant. Where the activity requires workers within the 3 metres or within the area of influence, you must ensure that, workers are properly trained, a spotter is assigned to the plant or vehicle, plant operators and vehicle drivers are advised of the proximity of workers on foot. In relation to Spotter/observers the tip sheet outlined that the use of spotters is required for plant and vehicles in the vicinity of workers on foot. This includes, ensuring communication systems are established between observers, workers on foot and plant/truck operators. Spotter must have the authority to stop work where a danger exists for workers on foot from the plant or vehicles. "
However this document was not provided to workers at the site nor did it form part of the induction package.
The RTA required all of its contractors to supply SWMS prior to work being undertaken on this project. Terra Civil had in place a SWMS for the work to be conducted for the project at the time of the incident. It identified the risk of being struck by moving plant or vehicles. It required a flagman to be present and that all personnel must remain aware of moving traffic at all times. However the SWMS did not identify the need to have in place communication systems or to have a spotter present when people were working in the vicinity of moving plant.
Working in the vicinity of moving plant
The RTA Site Information Package stated that
i. " work should not be carried out within 3 metres of mobile plant (this includes within 3 metres of any moving plant, such as the bucket of an excavator). If this is not possible the Team Leader appoints a suitably qualified person to be the 'safety observer' (spotter). "
At the time of the incident the RTA Team Leader Ratko Ivanovski was on site providing supervision and instruction and was in the immediate vicinity of the incident scene. Kevin Finnemore was working under the immediate instruction of Ratko Ivanovski.
Employees and contractors were required to access the closed lane by "jumping" the water filled safety barriers to retrieve orange safety cones and to pick up earth that had fallen onto the road from the excavator bucket. On the day of the incident both David Ball and Kevin Finnemore had been observed in the closed lane (lane 3) moving orange safety cones to allow the Terra Civil prime movers to enter the closed lane. They would then place the orange safety cones back in a position to cordon off the lane to passing motorists. Kevin Finnemore was also observed in the closed lane clearing dirt and debris off the road that had fallen whilst excavated material was being transferred into the trailers so as to remove it from the site.
The risks to pedestrians/workers associated with the movement of mobile plant/vehicles on work sites, are both obvious and well known in industry.
The WorkCover Code of Practice "Moving Plant on Construction Sites" ("the Code of Practice") came into effect on 16 January 2004. The Code of Practice was in operation as at the date of the incident and the Code of Practice applied to the movement of both mobile plant and road vehicles, within the site:
Chapter 1, Section 1.2 and 1.3 of the Code of Practice states, in part, that:
"1.2 Purpose:
This code of practice provides practical guidance to prevent injury to people where moving plant is used at construction sites.
1.3 Scope
This code of practice applies to the use of moving plant at all construction site places of work in NSW, except mines."
Chapter 3, Section 3.2 of the Code of Practice states, in part, that:
ii. Vehicle movement procedures should be developed based on the risk assessment and should be updated each time the conditions on the site change in a way that may affect the health and safety of persons at the workplace. It should also include an assessment of the visibility of plant and traffic from all areas of the work site.
iii. The use of specific measures to eliminate or control identified risks should be done on the basis of the risk assessment. In particular, consider the following:
iv. isolating vehicles and plant used in or around the site and work area from persons on the site or work area. For example, vehicles or persons may be guided around or past the work area;
v. implementing safe work distances
vi. identifying designated delivery and turning areas
vii. planning the direction that plant moves, so the visibility of operators is not restricted;
viii. using spotters/safety observers to control traffic movement"
At Chapter 3.3 controls for the safe operation of plant were listed and included:
i. Vehicle movement procedures for positioning and repositioning of plant - these procedures should include specific procedures when plant is operated near persons, near underground or above ground services, moving plant onto a public road from site or reversing plant;
ii. Instruction and information about hazards;
iii. All persons who perform work using (or on) powered mobile plants must be adequately instructed in the hazards associated with the plant and carrying out the work on site and the control measures for safe work".
At Chapter 3.3.3 controls for pedestrians near moving plant referred to the need for a spotter and the need to ensure no persons are at risk before reversing. It was specifically noted a spotter should always be in the sight of the plant operator.
The RTA did not have a procedure to clean up earth that had fallen onto the road in the closed lane. The RTA did not have a documented or formalised procedure for the use of this Geotech. (subject to the defendant's objection on the grounds of relevance).
Communication
There was no safe system of communication in place at the site between the employees and supervisors of the RTA, Terra Civil and other subcontractors. As a result, employees and supervisors were unable to consistently and adequately inform each other of worker and vehicle/mobile plant movements within the site.
At the site there was an inconsistent understanding of communication systems. David Ball stated that the sounding of a horn from either the excavator or the truck would signify to employees that trucks were departing. Adamo Spinozzi stated that he would signal by either a wave or a nod. Alternatively, he suggested that he would beep the horn.
At no stage did the RTA ensure that communication systems are established between observers, workers on foot and plant/truck operators as recommended by the Tip sheet for Working on foot in proximity to moving plant.
At no stage did Terra Civil ensure that they had an agreed communication system in place that was understood by all workers that they were working with, including David Ball, Ratko Ivanoski and Kevin Finnemore.
An expected outcome of how communication could have been attained is outlined in the Code of Practice 2004 for Moving Plant on Constructions Sites Chapter 3.2 Assessing and controlling common risks. It states that procedures should be implemented to warn all workers of the potential hazard and that these should include a system of communication and warning to persons near the delivery point.
In addition prior to the incident an RTA employee David Ball was required to undertake traffic control duties with an expired traffic control ticket. (subject to the defendant's objection on the grounds of relevance).
Additional work requests by the RTA of Kevin Finnemore
Online did not provide any instruction to either Kevin Finnemore or the RTA that no work was to be undertaken by Kevin Finnemore which was outside the scope of the contractual duties without prior consent.
Online Concrete Sawing had no procedures in place to assess if the additional tasks requested were safe and Kevin Finnemore qualified to undertake it. Online Concrete Sawing solely relied on the RTA supervisors and team leaders to contact them if there was an issue.
Online did not have in place any Safe Operating Procedures for the operation of the watercart at the roadworks site. At the time of commencing employment with Online Concrete Sawing Kevin Finnemore was given a brief verbal overview regarding safety. This overview which was considered to be his induction included a demonstration on how to operate the plant and a verbal request from Mr Charan for Kevin Finnemore to stay within your truck to be on the safe side.
At no stage did Online inform or instruct Kevin Finnemore not to perform work when out of his water cart when working within three metres of moving vehicles without a spotter or observer being present.
At no stage did Online undertake a risk assessment that identified and considered the risk where a spotter or observer was not present to coordinate the safe movement of plant and vehicles when people were working within three metres of moving vehicles. In addition, Online did not enquire as to what measures or steps the RTA had taken to identify and consider the risk.
Systems in place following the incident
On 1 May 2008 Inspector Amanda James issued a "Prohibition Notice No: 148874 on the RTA, requiring that persons accessing/egressing from exclusion zones should cease immediately to prevent being struck by moving plant/vehicles. The RTA was required to develop implement and maintain a safe system of work to control the safe movement of persons in the workplace where there are moving plant/vehicles.
An Improvement Notice No: 26890 was also served on the RTA requiring that persons are provided reasonable supervision from a competent person for employees at this place of work. The RTA was to provide reasonable supervision from a competent person for employees at the place of work.
After the incident WorkCover issued an industry Safety Alert titled Moving Plant on Construction Site (undated).
Following the incident and in compliance with the notices issued, the RTA engaged the services of an external contractor HMS Traffic Pty Ltd to redesign the Traffic Control Plan. The amendments to this plan included reduction in speed along Epping Road, leading up to the road works, spotters for trucks on site and the introduction of 'no go' zones.
The RTA amended the original SWMS, which addressed the Traffic Control Setup using stationary equipment for short and long-term works. This SWMS addressed the areas of closing traffic lanes and establishing no go zones and spotters for plant and vehicles entering the no go zone. This information was then delivered to employees at toolbox meetings.
Following the incident there was an increase in the number of toolbox meetings to employees and contractors. On 5 May 2008 during the course of the toolbox meetings the Tip sheet Working in Close Proximity to Moving Plant dated March 2006 was emphasised to employees and contractors.
RTA employee David Ball had his expired traffic control ticket renewed. (subject to the defendant's objection on the grounds of relevance).
Relevant Principles
7In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 10(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The Court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).
8Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]).
9Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]:
The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.
10Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]).
11The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, Staff J observed at [9]:
In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]:
'[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.'
Of particular relevance is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia:
. . .
(2) Aggravating factors
. . .
(d) the offender has a record of previous convictions,
...
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
. . .
(3) Mitigating factors
. . .
(e) the offender does not have any record (or an significant record) of previous convictions,
...
(g) the offender is unlikely to re-offend,
...
(k) a plea of guilty by the offender (as provided by section 22)
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23)
. . .
Consideration
12In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474):
...in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"...
And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]:
In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, 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....
13Onto this RTA road widening site, the defendant contracted a sub-contractor to drive prime movers, with attached trailers, for the loading of excavation materials (given the median strip was being removed to construct a right hand turning lane). On driving out of the construction site, but still in the dedicated exclusion zone beside the median strip, the heavily laden vehicle moved forward to exit the site. The driver drove off without being given any safety clearance by what the RTA itself required on such a work site, namely: a spotter. There was no spotter on site nor any dedicated site communication system between the RTA and the truck drivers. The truck struck a labourer on foot when driving off the site.
14The RTA had numerous documents directed to safe working for this type of road works site. All contractors had attention drawn to its Road Services Management Plan. There was developed under the plan a Project Specific Site Plan and within that a risk assessment was conducted and safe work method statements were developed for particular tasks. Also addressed were site induction and inspection schedules. The RTA also had, at the time of the incident, a significant generic module of a safe work system for traffic control on its work sites. Sub-contractors were required to comply with all the above standards and requirements. There were instructions as to compliance given by the RTA to its sub-contractors and their employees.
15All employees of the sub-contractors and employees of the RTA were given a site specific information package tailored to the Epping Road Project, the site of the incident, which stated:
Work according to the Traffic Control Plan ...
You must obey the Vehicle Movement Plan and Pedestrian Movement Plan when driving or walking around the work site.
Work should not be carried out within 3m of mobile plant ... If this is not possible, the Team Leader appoints a suitably qualified person to be the 'safety observer' (spotter).
16The RTA generic Safe Work Method Statement stated:
Safety Controls:
Site specific controls are to be established and communicated to all staff including all contractors onsite. The blocked off carriageway or nominated confined working areas are to be classed as NO GO ZONE as where all persons, vehicles and plant within this area, come under the direct control of the nominated spotter. The spotter shall be positioned as to ensure his safety and has clear line of sight of all construction activities. The spotter must have established communication procedures with all staff, drivers and operators working in the no go zone.
The spotter will direct and co-ordinate the safe movement of plant and vehicles within the no go zone, this includes entry and exit from zone to trafficable roadway. All staff and contractors are to follow all directions from the spotter.
The NO GO ZONES shall be identified on the Traffic Control Plan and communicated to all staff and contractors.
However, the RTA also issued a document to the sub-contractor supplying the truck, which said traffic control was under the RTA's control and also that none of its modules for traffic control were applicable to this site.
17The work method chosen, despite the general modules, failed to identify the risk of the movement of heavy vehicles if there were labourers on foot on site. There was, from the defendant RTA, no provision on site of either a spotter or an internal communication system between the RTA supervisors and the truck drivers when they exited the site. The evidence suggests there was a communication system for entry onto the site. Further, Mr Finnemore's circumstance was most unsatisfactory. He was on site on the relevant day to drive a water cart but as he was not required to use the water cart, the RTA was using him to work, under its direction, as a labourer and it instructed him to clear the roadway of scattered dirt. Their own requirement of a three metre "no go" zone for employees on foot where there was movement of vehicles was not complied with by the RTA in giving this instruction to the deceased.
18In not providing a spotter and in using an employee of a sub-contractor to perform labouring work for the RTA, an inference can be cast that there was a shortage of staff on the RTA gang/crew. So the most dangerous of tasks - the moving around on site of heavy vehicles - was conducted without any of the acknowledged safety precautions being followed on the worksite. This neglect of its own basic site safety procedures led to the RTA's failure to ensure Mr Finnemore's safety. Further, in accordance with the Work Order provided to the defendant trucking company by the RTA, it was specifically stated:
Traffic Control would be provided by the RTA, if required.
19There was a foreseeable element to this offence which makes it more serious. The defendant revealed it had a UHF radio system available for contact between it and the sub-contractors on site but there was no evidence such a system was in use to assist with the safe departure of vehicles. It appears it was used to direct vehicles onto the worksite but not used for their departure.
20There is a need to consider an element of deterrence in the consideration as to penalty. The Full Bench encapsulated the approach to deterrence in the following passage in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [74]:
... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.
and in Capral , the Full Bench also affirmed what was said by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 (at 388):
the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.
21In dealing with the issue of specific deterrence, the Court in Capral noted at [76]:
... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ...
and further:
The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence.
and at [77]:
In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace.
22In the consideration of penalty there must be an element of specific deterrence. The RTA had a refined documented safe work procedure in place at the time and I accept it clearly communicated its procedures to its sub-contractors and all employees on its worksites. But once again there was a failure to follow well researched safety policies at the worksite level. In this incident, direct responsibility for the control of traffic on this worksite was carried (through the documented procedures) by the RTA but not complied with by it. There was a failure to co-ordinate the movement of heavy vehicles with the control of employees on the site on foot.
23The failure to both co-ordinate and endorse, through a site safety work method, basic site safety modules (which had been identified to meet the risk - for example, radios, a spotter) led to the real risk which eventuated with the death of Mr Finnemore - a most willing employee. In this circumstance, the words of Hill J in Tyler v Sydney Electricity (1999) 47 IR 1 at [5] are most apposite:
The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from the breach and its foreseeability are clearly relevant.
24The incident also demonstrates the gravity of the risk to employees who are performing particular tasks for different employers on the same work site but in isolation, without basic safety procedures in place and no communication between the parties. The risk in such a circumstance is reflected in a serious breach of the Act.
25In the development of an awareness for occupational, health and safety standards on worksites, what this incident exposes is that there is now much attention given by employers to the relevant principles in the preparation of documentation for safe working procedures and real attention is being given to the on-site design of safe work methods following risk assessment of particular tasks. However, if in the enactment of those documented procedures there is a failure in the risk assessment to recognise that known dangerous circumstances exist at a worksite, there will be no way to ensure safe working. Further, when there are multiple contractors on site, each must risk assess tasks. Here the RTA knew of the risk provided by moving vehicles when there were labourers working alongside heavy vehicles on its worksites. However, it failed to identify that risk and therefore failed to put in place known safe work methods. The other contractors all carried similar obligations to ensure safe working. They also failed to recognise the risk. There will be an element of general deterrence to the penalty in this case.
26However, there must be a consideration as to contribution to the risk. The RTA had an ongoing involvement on site including the presence of supervisors. Terra Civil was working two trucks with trailers on site. Mr Finnemore was working at the time under the direction of the RTA and was not supervised by his employer. The RTA had knowledge of the danger of vehicle movements on site as did Terra Civil. The failure to provide any of its own documented safety requirements to ensure safe movement of vehicles on the site was a failure by both the head contractor and the sub-contractor, Terra Civil. However, I accept the RTA, in assuming responsibility for traffic control on site, carries the most significant contribution to the risk. That is not however to say that the provider of the trucks and the employer of Mr Finnemore are not liable for the failure to ensure safe working and the exposure of persons on foot on the site to the risk provided by the uncontrolled movement of trucks off the worksite.
27Ms Tosti, the General Manager of Occupational Health and Safety at the RTA has revealed that, since the incident, the traffic control plan has been revised and the following changes have been made: the closed off lane in which the incident occurred was made a no go zone for employees; the RTA will now engage traffic control employees to act as spotters for trucks entering and exiting any closed off lanes; the speed of passing traffic is now reduced to 60 kilometres per hour leading up to the site and 40 kilometres per hour in the immediate vicinity of the site. Ms Tosti also revealed that the following Road Services Initiatives have been introduced since the event: the appointment of site marshals; annual OHS Summits are now heard; annual OHS inductions are given to all Road Fleet Services Teams; a Stop and Reset Program is in place; and 'Leadership of Worksites' (LOW) training is now given. Many of the Authority's internal procedures have also been revised and given weight.
28Notwithstanding the remedial steps taken, this was an offence by way of the neglect of well know safety precautions.
29The new system requires each sub-contractor to provide spotters and now site marshals will be on site and controlled by the RTA. The RTA must ensure there is but one senior employee made responsible for directing truck and plant movements in and out of such sites and to co-ordinate those movements taking into account the protection of persons on site on foot. The site specific contracts should identify which identity, the head contractor (RTA) or a sub-contractor, carries the final responsibility. On sites where there are multiple sub-contractors and many spotters/flagmen/site marshals, it will be necessary to ensure there is no confusion as to who is in control of traffic movement.
30During the sentence hearing, the Court raised the relevance, in the determination of sentence, of the judgment in Inspector Rowe v Eagle Eye Traffic Services Pty Limited and Ors [2010] NSWIRComm 31. In particular, the Court raised whether knowledge or information gained during the Eagle Eye proceedings could be taken into account in determining penalty in those proceedings. It was submitted by the RTA and the prosecutor that the Court could not use any knowledge gained in other proceedings, especially given the RTA was not a party to those proceedings nor a party to the Agreed Statement of Facts.
31Relevance is placed by both the RTA and the Prosecutor on the reasoning of the Court of Criminal Appeal in Regina v J.R.B [2006] NSWCCA 371 when it considered at [41] whether a sentencing judge had erred in relying on information obtained in other cases. In his judgment, James J made a number of cautionary comments at [42] - [44]:
[42] In order to avoid an infringement of procedural fairness, a sentencing judge who intends to rely on information he has obtained in other cases, should disclose his intention to the parties in the instant case so as to afford the parties an opportunity of objecting or of taking other steps. If one of the parties objects, the sentencing judge should not use information obtained in other cases, unless the information is of matters of which judicial notice can properly be taken.
[43] I consider that a sentencing judge should be cautious about using information obtained in other cases. Unbeknown to the judge the other cases may not be truly typical or representative. It is unlikely that the legal representative of the parties in the instant case would have any knowledge of the other cases and consequently the legal representatives would not be able to assist the judge in determining how much weight should be given to the information.
[44] A sentencing judge should be cautious about using information obtained in other cases to the disadvantage of the person being sentenced.
32In Eagle Eye at [27], the Court commented as follows:
. . . Co-ordination must be a priority on sites with multi sub-contractors. I accept, in accordance with modern industrial practice, it may be a sensible industrial decision for an authority like the RTA to contract out the upgrade and maintenance of its roads to specialist sub-contractors with specific skills. Hence, on this site, we had the Planner, the Asphalter and the Road Traffic Controller. Such contracting out, however, must ensure there is a rigorous planning instruction and training of all employees brought onto a multi-disciplinary worksite. Job specifications must be clear and each defendant must ensure there is, on the worksite, full compliance with its safety obligations. In this circumstance, while each party could present safe work models and plans and there were site safety meetings, there was a failure to co-ordinate each sub-contractor's operation. That failure was a communication failure on site and, as a result, the Asphalter's truck caused the death of a Traffic Controller.
This statement of principle is apposite to the present breach. I do not accept it is likely the RTA had no knowledge of this matter. I believe it is proper for the Court to take judicial notice of the statement of principle made in the above publicised judgment. Once again the Court reiterates the need on any multi disciplinary site for co-ordination of all activities on such a site. In adopting the above cautionary view as apposite, I do not accept there is any prejudice to the RTA by the Court in this matter in reiterating the necessity for site co-ordination. The judgment itself makes clear the RTA was not prosecuted in relation to the incident and the Court held, on the evidence, one of the defendants carried the responsibility for "traffic control". While adopting the view that site co-ordination is essential, the principle is relevant and applicable to all multi disciplinary sites.
33The defendant's criminal record raises for consideration whether "retribution, deterrence and protection of society may indicate a more severe sentence is warranted" ( Veen v The Queen (No 2) (1988) 164 CLR 465 at [477]). Such consideration does not, however, affect the objective seriousness of the offence.
34I accept the RTA has demonstrated a commitment to ensure safe working on its road work sites. However, that commitment must be examined in the context that there have been some 14 prosecutions brought against it by the WorkCover Authority, some of which have resulted in serious penalties. Therefore, the maximum penalty for this offence is $820,000.
35The defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offence. In Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 (at 106), the Full Bench (Hungerford, Marks and Schmidt JJ) observed:
We accept that there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OH&S Act . ...
A plea of guilty therefore may attract a greater degree of leniency in penalty. In Winchester v Regina (1992) 58 ACrimR 345, Hunt CJ (at CL) held (at 350):
A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will be determined upon many different factors. The plea may in some cases be an indication of contrition or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the person has pleaded guilty.
36The defendant entered an early plea to the amended summons which, in accordance with the principle recited in R v Thomson; R v Houlton , I believe should attract a 25 percent discount of penalty.
37The defendant provides significant opportunities for employment within New South Wales for professionals, tradespersons and labourers. It is also active in sponsoring charities and in support of community activities. It has, by giving its time and support for local activities, had a significant influence in many local communities.
38It has expressed its sincere regret for the incident. Mr Finnemore had no family but there was a courtesy paid by the RTA when its senior managers and site crew members attended his funeral.
39Nonetheless this was a most serious offence where, on an RTA worksite, the defendant agreed under the contract it would be responsible for traffic control. Employees of sub-contractors were exposed to serious risk by the defendant's failure to have on its road work site a spotter; to co-ordinate vehicle movement; to have a dedicated communication system between all employers on site; to have adequate supervision to ensure there was compliance with recognised safe distance rules for employees on foot exposed to the movement of vehicles. These failures all contributed to the risk. While there was a failure as to reducing the speed limit on site, there is no evidence this failure contributed to the risk.
40I find the defendant guilty. The defendant is fined the sum of $180,000 with a moiety to the WorkCover Authority.
Orders
41The Court makes the following orders:
(1)In Matter No IRC332 of 2010, I find the defendant guilty of the offence as charged.
(2)The defendant is fined in the sum of $180,000 with a moiety to WorkCover Authority of New South Wales.
(3)The defendant to pay the costs of the Prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 April 2011
Parties
Applicant/Plaintiff:
Inspector James
Respondent/Defendant:
Roads and Traffic Authority of New South Wales
Legislation Cited (2)
Occupational Health and Safety Act 2000(NSW)s 10(1)