(2003) 130 IR 364
Postiglione v R (1997) 189 CLR 295
R v Gallagher (1991) 23 NSWLR 220
R v Thomson
R v Houlton [2000] NSWCCA 309
Source
Original judgment source is linked above.
Catchwords
(2005) 215 ALR 213(2005) 228 CLR 357
Morrison v Powercoal Pty Limited [2003] NSWIRComm 416(2003) 130 IR 364
Postiglione v R (1997) 189 CLR 295
R v Gallagher (1991) 23 NSWLR 220
R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383115 ACrimR 104
R v Way [2004] NSWCCA 131
Judgment (5 paragraphs)
[1]
15 ACrimR 104
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Wilhelm [2010] NSWSC 378
Tyler v Sydney Electricity (1993) 47 IR 1
Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326
WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25; (2002) 112 IR 284
Category: Principal judgment
Parties: Inspector James (Prosecutor)
South Coast Excavators Pty Ltd (First Defendant)
Jai Ram Charan (Second Defendant)
Representation: R Reitano of Counsel (Prosecutor)
A K Singh of Counsel (Defendants)
WorkCover Authority of NSW (Prosecutor)
Rajesh Chand & Associates (Defendants)
File Number(s): IRC330 of 2010
IRC331 of 2010
[2]
Judgment
1These prosecutions are brought by Inspector Amanda James of the WorkCover Authority of New South Wales against South Coast Excavators Pty Ltd ("the corporate defendant") under s 8(1) and Jai Ram Charan ("the Director") under s 8 (1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 (the Act), by way of Applications for Order.
2In IRC 330 of 2010, it is alleged South Coast Excavators Pty Ltd, on 1 May 2008, contravened s 8(1) of the Act in that it failed to:
By its acts or omissions as particularised below, ensure the health, safety and welfare at work of all its employees, and in particular Kevin Finnemore, contrary to section 8(1) of the Occupational Health and Safety Act 2000 .
In particular:
(a) The 'work' was excavation work and the removal of excavated material associated with road widening work at the premises;
(b) The 'risk' was the risk of injury to employees of being struck by moving vehicles;
(c) The defendants 'place of work' was the premises;
(d) The defendants undertaking was, amongst other things, the provision of water cart services, including employee to operate and work with water carts in a contract basis;
(e) The employee who was exposed to the risk was Kevin Finnemore;
(f) The defendant failed to give either Kevin Finnemore or the Roads and Traffic Authority an instruction that Kevin Finnemore was not to perform any other work at the premises other than the work that the defendant had been engaged to do which involved use of the water cart.
(g) The defendant failed to instruct Kevin Finnemore not to perform work when out of his water cart when working within three (3) metres of moving vehicles without a spotter or observer being present.
(h) The defendant failed to undertake a risk assessment that identified and considered the risk and the means of controlling 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.
(i) As a result of the defendants failures Kevin Finnemore was placed at risk.
(j) The injuries sustained by Kevin Finnemore were a manifestation of that risk.
3In IRC 331 of 2010, it is alleged the Director and controlling mind of the corporation, on 1 May 2008, contravened s 8(1) by virtue of s 26(1) of the Act in that he failed:
by his acts or omissions as particularised below, ensure the health, safety and welfare at work of all of its employees, and in particular Kevin Finnemore, contrary to section 8(1) of the Occupational Health and Safety Act 2000. .
In particular:
(a) The defendant was a person concerned in the management of the corporation
(b) The 'work' was excavation work and the removal of excavated material associated with road widening work at the premises;
(c) The 'risk' was the risk of injury to people who were not the corporation's employees of being struck by moving vehicles;
(d) The corporation's 'place of work' was the premises;
(e) The corporation's undertaking was, amongst other things, the provision of water cart services, including employee to operate and work with water carts in a contract basis;
(f) The employee who was exposed to the risk was Kevin Finnemore;
(g) The corporation failed to give either Kevin Finnemore or the Roads and Traffic Authority an instruction that the employee was not to perform any other work at the premises other than the work that the corporation had been engaged to do.
(h) The corporation failed to instruct Kevin Finnemore not to perform work when out of his water cart without a spotter or an observer when working within three (3) metres of moving vehicles.
(i) The corporation failed to undertake a risk assessment identified and considered the risk and the mean of controlling the risk associated with undertaking of water cart services;
(i) failed to consider the risk of not using a spotter to coordinate the safe movement of plant and vehicles within the exclusion zone
(j) As a result of the corporation's failures there was a risk of injury to non employees present at the premises of being struck by a moving vehicle.
(k) The injuries sustained by Kevin Finnemore were a manifestation of that risk.
4Each defendant pleads guilty to the charge.
5Mr R Reitano of counsel appeared for the prosecutor and Mr A K Singh of counsel appeared for the defendants. The prosecutor relied upon each Application for Order; an 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; four colour photographs taken by Amanda James dated 1 May 2008; 32 colour photographs taken by Constable Nathaniel Norsa; Australian Standard 1742.3-2002 Manual of Uniform Traffic Control Devices Part 3 Traffic control devised 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; Prior Convictions Report - South Coast Excavators Pty Limited dated 8 February 2011 and a Prior Convictions Report - Jai Ram Charan dated 31 January 2011.
6The defendants relied upon an affidavit of Mr Jai Ram Charan sworn 6 February 2011 outlining the corporate history and attaching relevant documentation related to the road site arrangements and financial circumstances of the defendant corporation and of himself as Director. The defendants also relied upon the affidavits of Sajana Nand affirmed 1 February 2011 and Anand Reddy an Surujpaul Ramja affirmed 31 January 2011.
7The same Agreed Statement of Facts was tendered in each prosecution. It was agreed that evidence in one prosecution be evidence in the other and relevantly reads:
2. At all material times SOUTH COAST EXCAVATORS PTY LTD ("the defendant") is a corporation whose registered office is situated at 22 Bougainville Road, Lethbridge Park in the State of New South Wales.
3. At all material times JAI RAM CHARAN of 22 Bougainville Road, Lethbridge Park in the State of New South Wales ("the defendant") was a director of SOUTH COAST EXCAVATORS PTY LTD ("the corporation") whose registered office is situated at 22 Bougainville Road, Lethbridge Park in the State of New South Wales.
4. On 29 October 2009 Online Concrete Sawing Pty Ltd ("Online Concrete Sawing") changed its name to South Coast Excavations Pty Ltd. All other aspects of the company remained the same.
Background
5. At all material times the Roads and Traffic Authority of New South Wales (RTA) was a body corporate constituted pursuant to Section 46 of the Transport Administration Act 1988 .
6. 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.
7. The RTA employed Craig Watson as Acting Quality Assurance PQR, Raymond Eaton as Construction Supervisor, Ratko Ivanovski as Team Leader and David Ball as a labourer.
8. The RTA subcontracted 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.
9. 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.
10. 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.
11. 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.
Project
12. The RTA was the principal contractor for the project at the site 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.
13. 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 grassed median strip.
The grassed median strip was approximately eight metres wide and divided six lanes of traffic: 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 from 1 and 31 May 2008.
Incident
On 1 May 2008 at approximately 7:00am, immediately prior to the commencement of works, workers closed lane 3 of Epping Road. Lanes 1 and 2 were left open for morning traffic. 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, 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 from Epping Road.
Prior to the incident there had been significant rain in the area and as such the services of 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.
Ratko Ivanovski did not communicate the request for additional work to the management of Online Concrete Sawing and as such Online Concrete Sawing had no knowledge of what work Kevin Finnemore was undertaking prior to the incident.
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.
David Ball was spotting for the excavator operator, cleaning the jersey curb and occasionally crossing the water filled safety barriers into the closed lane to move orange safety cones so as to allow prime movers to enter the closed lane.
Immediately prior to the incident, 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.
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.
[3]
Relevant Principles
8In 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 8(1) and s 26(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).
9Their 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]).
10Spigelman 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.
Proper 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, the Court 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.'
12Of relevance particularly 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) ...
[4]
Consideration
13In 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...
14The individual defendant, Jai Ram Charan, was an experienced excavator who ran a successful excavation business in Fiji, first for his father and then for himself. When he migrated to Australia in 1994, he obtained the necessary qualification to do work as an excavator in Australia. After working for others he established his own excavation business in 1999 which he now operates under the name Regal Excavators Pty Ltd. In 2007, he established an associated corporation called Online Concrete Sawing Pty Ltd which, in 2009, became known as South Coast Excavation Pty Ltd - the corporate defendant. It operated a water cart for roadworks.
15Mr Charan, as the Director, was also the controlling mind of the corporate defendant and, at present, the sole shareholder of the corporation. He is also a defendant to a charge under the Act in his role as Director.
16The defendant corporation was, on the relevant date, the provider of the water carrier with a driver. It was used to water down dust arising from the roadworks, where a median strip was being taken out to allow for a right hand turning lane, on a busy carriageway. On the relevant date the individual defendant, on behalf of the corporation, sent the employee, Mr Finnemore, to the RTA site to drive the water cart. However, as it had been raining, the services of the water cart were not necessary. The RTA supervisor then required Mr Finnemore to perform general labouring duties on the site. Mr Finnemore, without any training or instruction particular to the task of labouring on site, agreed.
17The defendant corporation had prepared, prior to the incident, a work method statement which outlined the duties of the water truck driver and included the following:
If the operator requires reversing the water cart he must ensure that there is a spotter on board with the correct PPE such as high visibility vest, safety enclosed shoes/ boots, glasses, hard hat and radio for communication if required.
The work method statement, therefore, only directed itself to the need for a "spotter" if reversing the water cart. No spotter was sent with Mr Finnemore as the driver. The contract with the RTA, as head contractor on site, did not mention any traffic control responsibilities would be held by the corporation. However, the Act requires Mr Charan, through his corporation as the employer, to provide a safe working environment for employees.
18Mr Finnemore was on the site without supervision. He was not instructed to not perform duties apart from driving the water cart. I accept Mr Charan orally instructed Mr Finnemore as to occupational, health and safety standards, although there were no complete safe working modules prior to the incident produced by the defendant company. However, Mr Finnemore, when on site on the relevant date, accepted the authority of the RTA and performed labouring work for the RTA. It was working in this capacity, without supervision by his employer, that he was exposed to the risk from the uncontrolled movement of heavy vehicles on site. The risk became a reality when he suffered fatal injuries when struck by a moving truck with trailer.
19The corporation did not prepare a risk assessment of the site, did not warn Mr Finnemore about the necessity to work outside the three metre exclusion zone when working around moving vehicles and did not provide a spotter when an employee was required to work around moving vehicles. However, it is difficult to accept the failure to give such warnings makes this a more serious offence when it was not in the contemplation of the defendant corporation or its director that Mr Finnemore would perform labouring duties. His job was to drive a water cart which generally would have performed its work inside the median strip and away from the trucks - although close to the working excavator. However, the Act requires the employer to ensure safe working for every employee through training and instruction. This employee was required to perform work for which he was not trained. He, therefore, was not aware of the need to work three metres away from moving vehicles on the site. There was a systemic failure by others on site in the failure to provide a spotter to co-ordinate movement of employees on site given there were moving vehicles on site. There was also a failure to provide between the contractors a communication system. These failures led to a failure to alert a driver to Mr Finnemore's whereabouts. The act of both defendants that contributed to the risk, which became a reality, was the failure to supervise Mr Finnemore on site and the failure to instruct him as to the limitation of his duties.
20However, in the circumstance, I see no foreseeable element to this offence. It was not foreseeable that the RTA would require from an employee of a sub-contractor the performance of labouring duties under their direction.
21The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71]-[77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench 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 Ltd (No 2) [2000] NSWIRComm 39 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.
The corporation still accepts RTA work although has not recently won any tenders. Specific deterrence must be an element in the offence of each defendant.
22As to general deterrence a call must go out to all involved in the construction and maintenance of our roads, an industry where there are often many sub-contractors providing employees to work on the one worksite, that planned safe working modules must be adhered to. In this matter, the failure of others to have on site a spotter and a site related internal communication system and the failure of the defendants to properly supervise and instruct an employee brought about a failure to ensure the safety of a young man. The defendant corporation, through instruction from the RTA, had recognised and identified safe procedures for the risk associated with any site on which there were moving vehicles together with employees on foot. The defendant employer adopted and was trained in RTA safe working methods. Had those methods, designed to meet the associated risks identified, been heeded and the procedures implemented, this serious breach could have been avoided. There is an obligation on sub-contractors to refuse to work until all the recognised safety features are in place at the work sites to which it sends its employees. Each defendant must be active to ensure safe work methods are followed.
23After another incident involving the movement of vehicles on a roadwork site (where the RTA did not face prosecution), the Court commented on the safety procedures needed where there was a multi-disciplinary site with multiple sub-contractors with employees on the worksite in Inspector Andrew Rowe v Eagle Eye Traffic Services Aust Pty Ltd [2010] NSWIRComm 31 at [27] that:
... 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. ...
This incident is but another reminder of the need to co-ordinate activities on such dangerous worksites.
24In this circumstance, the risk to safety became reality. The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 at (5) I find 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 risk flowing from the breach and its foreseeability are clearly relevant...
25There was, I accept, a significant contribution to the risk from the RTA given its failure as the head contractor to ensure control of movement of traffic off this worksite and the failure to ensure Mr Finnemore, working under the control of the RTA, was not working within three metres of moving vehicles on the site. I also accept there was contribution from Terra Civil Pty Ltd - the corporation which provided the vehicles, which vehicles, under the work method statement, should not have exited from the site without ensuring persons working on foot on site were not within three metres of the moving vehicle.
26The defendants have accepted that each should have been more vigilant. Mr Charan, on behalf of himself and his company, opines he should have:
a) personally carr(ied) out, or ensur(ed) that the RTA carried out, a comprehensive risk assessment at the Epping Road site; and
b) ensur(ed) that Finnemore only carried out water cart duties and did not work in the vicinity of moving plant.
27Mr Charan, on behalf of the corporate defendant, has revealed that since the incident:
a) it is part of each employee's induction and ongoing training that they are orally advised not to work within 3 metres of moving vehicles;
b) a physical risk assessment is carried out at each new work site or a meeting is held with the main contractor to ensure that risks have been assessed; and
c) the written procedures of South Coast have been substantially improved.
28Each defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offence. It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]:
... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).
Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 at (228)).
29In Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99, the Full Bench (Hungerford, Marks and Schmidt JJ) observed at (106):
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. ...
I accept that both defendants entered early pleas. In accordance with the principles of R v Thomson; R v Houlton, I accept there is a utilitarian value to each defendant's early plea of guilty. I allow in the circumstances a 25 per cent discount for the utilitarian value of each plea.
30The principle of parity is relevant in this consideration in the circumstances. The Court must weigh up the seriousness of the risk and the different circumstance of each defendant. I have given consideration to the defendants' contribution to the risk. There must also be equal justice between the parties. The parity principle was stated by Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 (at 301-303) as follows:
...The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for me [12]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [13]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice.
However, the parity principle, as identified and expounded in Lowe v The Queen [14], recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance" [15]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. ...
31In this matter, four defendants have been prosecuted for offences under the Act arising from the same incident. It is appropriate, therefore, for the Court to adopt the approach taken by the Full Bench in Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 (at 341), where the Full Bench referred to the principles stated by Mason J in Lowe v R (1984) 154 CLR 606 (at 610) as follows:
Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.
32Given the circumstance where the corporate defendant's employee was not performing work for which he was trained and where the RTA had assumed authority to direct him, I find each defendant's liability less than that of the RTA and Terra Civil Pty Ltd.
33Of relevance particularly 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.
34There is lay evidence in affidavit form assuring the Court of the fine community work performed by the individual defendant for his Hindu community.
35He expends time and the endeavours of the defendant corporation doing building and renovation work for a local temple. The corporate defendant therefore has demonstrated a good community involvement.
36I accept the corporation is a good industrial citizen. It has been operating for three years with no prior convictions. The maximum penalty for a breach of the Act by a corporation is $550,000.
37The maximum penalty for an individual defendant is $55,000. Mr Charan has revealed he could not identify any family members of Mr Finnemore in order to personally convey to them his contrition and to ensure that his remorse was expressed in a practical way. However, he relies upon his activities in the Hindu community to reveal he is, personally and corporately, a good industrial citizen and a person of good character. References, I accept, give proof to that assertion.
38I accept each defendant's expression of remorse and contrition. However, this was a serious offence where an employee, unsupervised on site, lost his life because of the risk to which he was exposed and the failure of the defendants to properly supervise and instruct Mr Finnemore.
39The Court, however, has some difficulty with a number of applications made for consideration effecting penalty for these serious offences. The first application is for consideration of the assertion each is of limited means. That is, each defendant pleads impecuniosity.
40Section 6 of the Fines Act 1996 provides:
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
41Such a consideration was addressed in WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25; (2002) 112 IR 284 by Walton J, Vice-President at [83]-[84]:
[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at [50]):
It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201.
[84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at [81] - [82]):
... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at p339); WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at p333; and Profab Industries (49 NSWLR at p714, 100 IR at p76).
However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp209 - 210, Wright J, President observed :
'... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ...
...
When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ...
42The defendant corporation, South Coast Excavators, has provided information relating to its annual turnover between 2007 and 2009. The corporation reports net losses of $367 and $21,892 in 2007 and 2008 respectively, and net profits of $8,391 and $11,959 in 2009 and 2010 respectively. Its highest annual corporate income in that period was in the 2009 financial year and amounted to $122,394. The defendant corporation's financial returns also reveal there were shareholder loans in 2008 of $30,034.23; in 2009 of $17,572 and in 2010 of $59,696. The profits and losses were, from an examination of the returns, struck after the allocation of shareholder loans.
43Mr Charan affirmed his taxable income was $17,349 and $16,761 for 2008 and 2009 respectively, and his wife's taxable income was $7,534 and $16,705 for 2008 and 2009 respectively. Mr Charan in his affidavit swore he was the sole shareholder of the defendant corporation.
44However, it was also revealed (through an examination of both defendants' financial returns) that the individual defendant operated not only a water cart business with the RTA but also a related excavation business conducted under the name of Regal Excavators Pty Ltd. Documentation from the associated corporation, Regal Excavators, was required.
45It is submitted by both defendants, based on the documentation provided, that: Regal had average sales in the years 2006 to 2010 of approximately $488,615; had an average profit in the years 2006 to 2010 of approximately $71,764. As at 30 June 2010, Regal had net assets of $276,631. The average annual combined income of Mr J R Charan and Sushi Lata Ram (his wife) would be in the vicinity of $32,000. Mr J R Charan and Sushi Lata Ram have no assets. The effect of the above circumstances, it was submitted, is that the corporate defendant can still be characterised as a small business with a limited capacity to pay any fine. Therefore, the fine that otherwise would be imposed on the corporate defendant should be reduced to take into account its financial position.
46It is further submitted, given the individual defendant has no assets at all, that the Court should give consideration under s 10A of the Crimes (Sentencing Procedure) Act 1999 and determine that the individual defendant should be required, notwithstanding the plea of guilty, to pay no fine. Section 10A provides:
10A Conviction with no other penalty
(1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. ...
This provision was inserted into the Act in 2006. In R v Wilhelm [2010] NSWSC 378 at [36], Howie J in the Supreme Court of New South Wales described s 10A as being:
a section that has recently been added to the armoury of the sentencing court in such a case where the Court indicates that the charge was deserving of a conviction but one where it is deserving of no other punishment in the circumstances of the particular case.
In considering such a submission regard must be had to factors in s 10(3):
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person's character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
Reliance is placed on the reasoning in Inspector Cooper v Kwik Seal P/L [2006] NSWIRComm 48 at [43], [45] and [51] and Inspector Mulder v Girotto Precast Pty Ltd [2008] NSWIRComm 94 where a s 10 order was given in the case of a fatality.
47In Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138, Boland J considered the application of s 10A of the CSP Act. This case concerned the Redfern Riots in which 42 police officers sustained injuries. In considering its application, Boland J stated at [47]:
Where the risk to health and safety was known, where the breach had potentially very serious consequences for the health and safety of employees, where the risk was easily preventable, where the main factor to be considered in determining an appropriate penalty to be imposed is the objective seriousness of the offence, and where the subjective factors do not outweigh the objective considerations, there is no scope, in my opinion, to apply s 10.
It has also been held that the s 10 discretion is to be reserved for extraordinary and highly exceptional circumstances: Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31.
48However, the Court, on an examination of the new documentation produced, assesses the financial circumstances of the defendants differently. Rather than "averaging" the income of Regal, it has been revealed in 2009 Regal had an income before deductions of $1,143,855 and in 2010 $651,217. The corporate records further reveal Mr Charan is now the sole shareholder and director of Regal. Prior to that date, he asserts his wife was the sole director. Mr Charan contends his wife was at some time the sole shareholder. When the circumstances changed is unclear from the ASIC records produced. What is clear is Mr Charan is now the sole director and he has always been listed as the company secretary. He holds all three shares in the company. He registered the company.
49The financial records of Regal also reveal in 2007 there was a shareholder loan of $73,986.75. In 2008, when Regal had a turnover of $363,789.52, there was a loan to the shareholder of $92,259.00. In 2009, when Regal had an income of $1,143,855.98, there was a loan to the shareholder of $88,914.15. In 2010, Regal had an income of $669,293 and there was a shareholder loan of $42,202. All these loans were deducted before profit.
50Some prior decisions of the Court listing penalties under $5,000 have also been placed before the Court as a comparative. No reasoning has been advanced as to why such penalties would be apposite comparatives in the circumstances. It was also contended by the defendants, even if the Court takes into account the income and resources available to the personal defendant, the personal defendant remains a person of modest assets and financial resources with a limited capacity to pay any fine and the fine that otherwise would have been imposed on the personal defendant should be significantly reduced to take into account his financial position.
51It is now clear as a shareholder of each corporation, Mr Charan has received large loans from both the defendant corporation, and its associated corporation Regal, with no record of repayment for any of the loans over many years. I do not accept in the circumstances, and especially when the above financial details were not at first put properly before the Court, that either the corporate defendant or the individual defendant is in a pecuniary circumstance. The corporate defendant is owed a considerable sum given the loans it has given Mr Charan. Mr Charan has had, over the years, the benefit of these loans as well as loans from Regal. I therefore reject the submission either defendant is impecunious and therefore reject the application of s 6 of the Fines Act 1996 to my consideration of penalty.
52For all the above reasons, I reject any application of ss 10 and 10A of the Crimes (Sentencing Procedure) Act 1999 to the prosecution brought against Mr Charan. As I understand the submissions which I reject is, if there is to be penalty, the corporate defendant should be convicted and penalised but Mr Charan should be convicted with no penalty. However, s 10 nor s 10A I find are applicable in these circumstances. This was not a minor offence.
53I find each defendant guilty.
54As to costs, the defendants also rely upon the provision of s 4 of the Fines Act 1996 which provides relevantly:
(1) For the purposes of this Act, a fine is:
...
(f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or
...
55Reliance is placed upon the reasoning in Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158 where the Full Court stated:
[123] The issue before us relates to a costs order for the prosecution. In WorkCover Authority of NSW (Insp Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351, costs were considered in proceedings before the Court Session for breaches of the occupational health and safety legislation. That prosecution was dismissed The court made clear at [48]:
In summary criminal proceedings in this Court, it will ordinarily be appropriate to award costs to a defendant against whom a prosecution has failed. Once the legislature abolished the traditional common law rule that the Crown and those who institute summary proceedings neither pay nor receive costs, as it has done by enacting s14 of the Supreme Court (Summary Jurisdiction) Act , the Court must exercise its discretion as to costs in accordance with what is just and reasonable. Where a defendant has secured the dismissal of a criminal charge, it will not generally be just and reasonable to deprive the defendant of an order for costs.
56It was submitted that the costs for both defendants should be reduced to take into account each defendant's limited financial capacity and resources, although a concession was made that the corporate defendant could be eligible for penalty. However, the corporate defendant carries a significant profit margin over a number of years once loans to Mr Charan, the shareholder, are repaid.
57In considering the issue of costs as against the personal defendant, it was submitted that particular matters should be taken into account: it is possible the costs for the prosecutor as apportioned to the personal defendant would be substantially greater than the fine that would be imposed against him; the costs to be borne by the personal defendant would be in addition to the costs to be borne by the corporate defendant; if the usual approach to costs is taken, it would result in the personal defendant having to pay a disproportionately high amount in costs and in total.
58It was further submitted the appropriate approach to take in relation to the costs order against the personal defendant is: to set the appropriate penalty; determine the costs order; then determine whether the total fine and costs order are "an acceptable total" or "just and reasonable". In the consideration as to whether the total is appropriate, the Court, it is submitted, would not only bear in mind the financial position of the personal defendant but also the fact that the maximum penalty for the personal defendant is $55,000.
59In these two prosecutions, I reject the submissions of the personal defendant. I do not accept he has no access to funds.
60I find there should be no allowance allowed for a deduction in the penalties I set for each defendant and I reject the submission that each has a limited capacity to pay. The financial records reveal Mr Charan has been a significant beneficiary through loans from all of the family corporations and he was the Director and controlling mind of the defendant corporation. There will, therefore, also be no deduction of penalty because of the costs order. I find both defendants have a capacity to pay an order for costs.
61There should, however, be one order as to costs of the prosecutor in these two prosecutions heard together. The costs shall be borne equally between the corporate defendant and the personal defendant.
[5]
Orders
62The Court makes the following orders:
In Matter No IRC330 of 2010, I find the corporate defendant guilty of the offence as charged.
The defendant is fined in the sum of $45,000 with a moiety to WorkCover Authority of New South Wales.
In Matter No IRC331 of 2010, I find the individual defendant guilty of the offence as charged.
The defendant is fined in the sum of $15,000 with a moiety to WorkCover Authority of New South Wales.
There shall be one order as to the costs of the Prosecutor. Each defendant is liable for half 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: 31 March 2011
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 prime mover was at maximum capacity, Adamo Spinozzi advised Emilio Spinozzi he was going to depart. Adamo Spinozzi observed Kevin Finnemore in lane 3 as he moved toward his prime mover 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 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. However 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 no longer than 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 the Raymond Eaton the site supervisor to advise him of the incident than to call 000.
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.
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:
1 . "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 '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 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 care was necessary when entering and leaving traffic streams and turning in conjunction with works on roads.
i. "Section 7.4 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 ."
38(sic) The RTA utilised a Traffic Control Plan No: 94 ("TCP"). The TCP outlined the methodology that was to be implemented and utilised whilst the works were being undertaken. The original TCP was found in the RTA TCWS version 3.0 dated September 2003. The TCP used at the site was adopted directly from the TCWS manual but was not adequately assessed to determine if it was suitable for 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 how the communication was to be maintained by the 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.
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.
42(sic) The regular speed limit along the relevant stretch of Epping Road was 80 km per hour. 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 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.
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.
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 from the RTA pro forma Road Services Management Plan dated 23 March 2006 version 2.0. This folder 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 had 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.
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.
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
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). "
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, 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
i. " 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.
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 place 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:
i. " 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.
ii. 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:
iii. 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;
iv. implementing safe work distances
v. identifying designated delivery and turning areas
vi. planning the direction that plant moves, so the visibility of operators is not restricted;
vii. using spotters/safety observers to control traffic movement"
At Chapter 3.3 controls for the safe operation of plant were listed and included:
viii. 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
ix. Instruction and information about hazards
x. 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.
Communication
There was no safe system of communication in place at the site between the employees and supervisors of the RTA, Terra Firma 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 Firm 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.
Additional work requests by the RTA of Kevin Finnemore
South Coast Excavating failed to give either Kevin Finnemore or the Roads and Traffic Authority an instruction that Kevin Finnemore was not to perform any other work at the premises other than the work that the defendant had been engaged to do which involved use of the water cart.
South Coast Excavating failed to 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.
South Coast Excavating failed to undertake an adequate risk assessment that identified and considered the risk and the means of controlling 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.
At the time of commencing employment with South Coast Excavating, Kevin Finnemore was given a safety induction. He was regularly instructed by Mr Charan orally to be aware of other trucks and to stay on his truck at the work site.
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 the RTA a "Prohibition Notice No: 148874 was 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.