Inspector James v State Rail Authority of New South Wales

LEGAL REPRESENTATIVES: DEFENDANT Mr P Garling SC with Mr H Bauer of counsel Solicitor: Mr G McCann Sparke Helmore

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 19 December 2003

Matter No IRC 7537 of 2001 Inspector James v State Rail Authority of New South Wales Prosecution under section 15(1) of the Occupational Health and Safety Act JUDGMENT [2003] NSWIRComm 478

1 The State Rail Authority of New South Wales ("the defendant") employed Judith Ferguson as a train guard. On 25 November 1999 Ms Ferguson was on duty on a train (Run 32-F Service) travelling through Mortdale railway station to its destination at the Mortdale Maintenance Centre. Ms Ferguson had earlier spoken to the driver of the train about the possibility of alighting from the train at Mortdale railway station prior to it travelling on and into the Maintenance Centre. The train was not scheduled to stop at the railway station.

2 As the train approached the station it reduced speed and Ms Ferguson prepared to alight from the guard's compartment. As Ms Ferguson stood at the doorway of the guard's compartment preparing to alight, the train suddenly increased speed, causing her to stumble forward and fall onto the platform of the station. Due to a strap on the rucksack she was holding catching on the body of the carriage of the train, Ms Ferguson was then pulled along the platform with the train for about three metres, subsequently being caught in between the platform of the station and the body of the train, and then falling onto the ballast approximately half way along the platform.

3 As a consequence, Ms Ferguson sustained the following serious injuries: multiple fractures of ten ribs, fractures to both clavicles, a punctured right lung, bleeding from the lungs into the body cavity, fractured pelvic ramus, 3cm puncture wound to the left hip, fractured septum, numerous cuts and abrasions to the arms and body, together with major bruising.

4 Inspector Ronald Wayne James ("the prosecutor") of the WorkCover Authority of New South Wales charged the defendant with an offence under s 15(1) of the Occupational Health and Safety Act 1983. Section 15(1) provides: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

5 In an amended application for order it was alleged the defendant failed to maintain the health, safety and welfare at work of all its employees, in particular, Ms Judith Ferguson in that: (i) It failed to provide such information, instruction and training as was necessary to ensure that guards would be aware of and would avoid risks to their health and safety when boarding or alighting from trains, in particular by: (a) Emphasizing to them the importance of not boarding or alighting from a moving train; (b) Training them fully in safe methods of boarding or alighting from trains, both through initial training and regular refresher training; and (c) Implementing training and instructions warning guards of the dangers involved in any practice whereby a guard would board or alight from a moving train at a station where a train was not scheduled to stop. The defendant pleaded guilty to the charge against it. The evidence

6 An agreed statement of facts was tendered. Parts of the agreed statement I have already summarised. Other relevant information provided in the statement was as follows: 11. As at 19 November 2001 Ms Ferguson had undertaken rehabilitation and returned to restricted administrative duties for the Defendant, but had not resumed guard duties. 12. Prior to the accident date Ms Ferguson had not received any or any adequate instruction or training on the subject of boarding or alighting from trains, and in particular the training program provided to Ms Ferguson by the Defendant did not cover the following subjects: (i) The importance, including from the point of view of risks to personal safety, of not boarding or alighting from a moving train; (ii) That trains are not to be boarded or alighted from at stations where they are not scheduled to stop. After the accident date, the training program provided by the Defendant to new guards and guards undertaking refresher courses specifically included the subject: "the importance of not boarding or alighting from a moving train". 13. Prior to the accident date Ms Ferguson had never been instructed by any representative of the Defendant not to board or alight from a moving train. 14. Prior to the accident date an informal practice existed among the employees of the Defendant whereby train guards would, from time to time (i) Board or alight from moving trains; and (ii) Board or alight from moving trains at unscheduled stops. Indeed, on the accident date the Informant witnessed, while attending Mortdale railway station to investigate the accident involving Ms Ferguson and the Run 32-F Service, another person, wearing railway issue clothing, alighted from a moving train at the same station (being the passenger train service Run 11-E from Mortdale Maintenance Centre to Bondi Junction, the driver being P Smith and the guard being M Slinning). 15. Both during and after Ms Ferguson's training program the Defendant failed to provide Ms Ferguson with supervision and on the job guidance from experienced train guards, particularly in relation to matters pertaining to safe working methods and practices. 16. As at the accident date the Defendant had failed to issue the following to Ms Ferguson: (i) an Operation Management Electric Train ("OMET") Manual; and (ii) a Guards radio; even though of each of these items was, according to the Defendant's own practices, supposed to be issued to guards at the completion of their initial training program.

7 Mr P Punch, solicitor for the prosecutor, tendered a bundle of colour photographs showing the Mortdale railway station platform where the incident occurred and the guard's compartment on the train. Also tendered were a factual inspection report into the incident by the prosecutor dated 9 December 1999 and the defendant's record of prior convictions. I note that the defendant has convictions under the Occupational Health and Safety Act 1983 extending back to 1987. In the five-year period from 1997 to 2002 the defendant has had recorded against it 13 convictions for offences under the Act: an unenviable record.

8 Mr P Garling SC with Mr H Bauer of counsel appeared for the defendant. Counsel tendered into evidence an affidavit with extensive annexures of Julie Wills, Manager, Health and Safety Strategy for the defendant. I note the following information from Ms Wills' affidavit:

s Since July 2002 there have been 320,537,320 passenger journeys on the StateRail network. s StateRail employs 6,714 operational staff, of which 1083 are Guards. This figure does not include cleaners, clerical staff and tradespersons. s There have been no other instances of Guards being injured whilst alighting from a moving train making an unscheduled stop. s StateRail spends approximately $121.478 million on safety annually. s StateRail spends approximately $11.868 million per year on training. s Guard training consisted of nine (9) weeks training at the time Ms Ferguson was trained. Training is both in the classroom and out on the StateRail network. s The Safeworking Emergency Manual that was in place for the year of Ms Ferguson's training stated "DO NOT try to get on or off a moving train or vehicle". s At the time of Ms Ferguson's training, trainees were expected to review all safeworking documentation and training materials as part of their course. s At this time a mentoring programme was also in place. The purpose of the mentoring program was to ensure that trainee Guards were supported during their training and the commencement of their work on the StateRail network. s The mentoring programme consisted of 2 days of training focused on effective workplace communications delivered by an external consultant. s Trainee Guards were then assigned a Mentor who remained available to them anytime the trainee sought advice for the period of time the trainee considered necessary. It is also open to staff to maintain their mentor after their traineeship has been completed. Ms Ferguson was provided with Mentor, Karen Reardon. s In March 2000 StateRail introduced the first full competency based training for Guards. Competency based training, provides a nationally recognised qualification for staff, combined with structured on the job training it uses reliable assessment practices to support the learning and development process. s Since March 2000 Guards are required to complete the Certificate III Course in Transport and Distribution (Rail Operations) ("Certificate Course"). s The Certificate Course greatly increased the focus on the hazards of alighting from a moving train. s As part of the field work component of the Certificate Course during their introduction to 'hands on' work as a Guard, trainees work with a Guard observing their duties. At this time the trainees do not perform any of the Guard duties themselves. Part of this field work involves specific training on the safety hazards of alighting a moving train. The Coach's Guide, used by trainer Guards refers to the important of not boarding or alighting from a moving train. The Coach's Guide provides a framework for Trainer Guards on what should be covered each day of the field work. s As part of the Certificate Course trainee Guards also receive training on the danger of alighting a moving train as part of their Safeworking Training. s The hazards of boarding and alighting from a moving train continue to be included in both classroom and the field work component of the course. s As part of the foundations of safeworking training, trainees are specifically instructed in relation to boarding or alighting a moving train. s StateRail has also introduced a more regular cycle of refresher training focusing on all aspects of safety including safeworking and occupational health and safety.

s Safety Management System Training (SMS training) commenced on 1 January 2000. It consisted of training for: Drivers; Guards; Signallers; Train Controllers; Shunters; Safeworking Station Staff; Station Managers; Train Planners and Traffic Officers. s SMS training occurs every 16 weeks. There are three rounds a year and operational staff are required to attend all three rounds. Each round is conducted for 4 months before a new round commences. s SMS training has been evolving and developing as new learning tools become available and feedback is incorporated from earlier rounds. s The SMS training model incorporated use of the Virtual Reality Training Centre once this facility became available. s StateRail has a dedicated Occupational Health and Safety Unit. s StateRail employs 21 people who undertake occupational health and safety duties on a full time basis and contractors are also used as required. s The Occupational Health and Safety Unit is primarily responsible for the delivery of strategic risk elimination and mitigation systems and programs which are integrated into the total safety system. The Occupational Health and Safety Unit has the responsibility of leading the development of documentation and implementation of the total safety system.

9 In her affidavit Ms Wills expanded on the Virtual Reality Training Centre. The Court took the opportunity prior to the sentencing hearing to view the Centre at Petersham. The Centre is a truly impressive training tool and the defendant deserves great credit for taking this initiative. Ms Wills' description of the Centre was as follows:

76 The Virtual Reality Training Centre (the "Centre") is the first of its kind in Australia, it was commissioned by StateRail and was custom designed and built. 77 The Centre is an interactive training environment. A computer driven visual image is projected onto a screen which has been created to make the viewer feel that they are part of the scenario. It forms part of the facilities at the Australian Rail Training Centre at Petersham. 78 The Centre features two custom made reality centre rooms which can cater for up to 40 students at a time and creates a fully immersive visual and auditory experience. The Centre also contains 2 dedicated simulated trains in a third room which provide simulation of StateRail's current electric rolling stock. 79 Scenes are created on storyboards which are then computer generated and displayed on a virtual reality screen. These scenes form the training scenario. 80 The training scenarios are controlled by computer and have been created with different outcomes and decision making options to fully utilise their training impact. The image can be stopped at any time to allow group discussion or instruction. The instructor can also modify the experience by introducing different weather conditions or other hazards such as workers on the line. 81 Under the guidance of the trainer groups are immersed in the virtual representation of the potential real life scenarios which show both positive and negative outcomes of the decisions made. 82 The Centre enables StateRail to train either Guards or Drivers, both groups together or other combinations as needed. 83 The software and the design of the Centre also enables a Driver to be in a mock up cabin in another room. He or she can be involved in the scenes and undertake the driving duties of the driver shown in the scene. His or her decisions will then form part of the scene and the image being viewed by the main training group. This feature further emphasises the ability of the Centre to ensure teaching outcomes. 84 It is also possible for the students using either a generic control board or from the mock train to make decisions and to see those decisions 'played out' in the training situation. This enables a discussion on the different options available. It also incorporates the areas of responsibility of both Drivers and Guards and makes each aware of the other's safeworking perspective. 85 This functionality makes the Centre a powerful tool to enforce the possible outcomes of the decisions made in relation to the different scenarios and dramatically emphasises the safeworking focus of the lesson plan. 86 The Centre has recently won the 2002 Achievement of the Year Award presented by the Chartered Institute of Logistics and Transport. 10 Ms Wills also referred to the Virtual Reality Training Project that was created with the WorkCover Authority of New South Wales in August 2002, using the Centre. Both the defendant and WorkCover are to be commended for the Project. It would be most worthwhile, in my view, if WorkCover were able to disseminate information about the Project to a wider audience of employers, especially larger employers, so that they might consider a similar approach to safety training. Ms Wills' description of the Project (references to annexures deleted) was as follows:

88. WorkCover agreed to assist in the development of training outcomes to ensure competency based training which addresses situations where persons may alight from a train at an unscheduled stop.

89. WorkCover's involvement in the Joint Training Project consisted of consultation, feedback, review and endorsement. 90. Ms Thomas, Manager Retail, Wholesale, Transport and Storage Team and Ms Kozianski, Project Manager were involved on behalf of WorkCover. 91. The Joint Training Project involves the use of the Australian Rail Training Virtual Reality Centre, which was commissioned in March 2002 and commenced operation on 1 August of 2002. 92. The Joint Training Project developed with WorkCover focuses on the issues of persons, alighting from a moving train. 93. The Joint Training Project involves credible story lines which require the students to made decisions as to what the Driver or Guard in the scenario should do, and then see the outcome of that decision. The scenarios have several different outcomes built in as part of the scenario. 94. … 95. The lesson plans were first developed and then storyboards were created to support the goals of the lesson. Face to face teaching is also conducted in conjunction with the virtual reality component of the training. 96. … 97. The project took approximately five months to design. Consultation was also made with various union representatives to ensure the scenarios created were relevant to the issues faced by Drivers and Guards when working on the StateRail network. 98. 1224 Drivers and 1005 Guards have participated in 368 SMS classes at the Virtual Reality Centre on the new storyboards. 99. The training project cost $94,600.00 to create, a further $252,328.00 approximately, was incurred for the delivery of the project in the SMS training rounds to Drivers and Guards. This figure does not include operational costs such as trainee wages. 100. Training on the situations created as part of the project commenced with SMS round 2.2 on 20 January 2003. It is anticipated that ongoing training of both Drivers and Guards will take place as part of each Drivers and Guards initial training.

11 Ms Wills' affidavit also referred to the assistance provided to Ms Ferguson following the accident. I note that the defendant presently employs Ms Ferguson as an administration officer for a crew area manager. Ms Wills also expressed the defendant's deep regret at the incident.

12 Mr Punch submitted that on the question of the nature and gravity of the offence, the offence was a serious one, as the accident that occurred was foreseeable, and that injuries sustained by Ms Ferguson demonstrated the "enormity" of the risk thereby occasioned to the safety of employees of the defendant. It was also admitted by the defendant that at the time of the accident there was a practice (the prevalence of which is unclear) of guards sometimes alighting from moving trains at unscheduled stops.

13 Mr Punch submitted, however, bearing in mind the very substantial commitment the defendant has made towards ensuring the causes of the injury to Ms Ferguson were removed for the future, in particular by: (i) a rigorous program of training and retraining of operational staff; (ii) the implementation of the virtual reality project viewed by the Commission and the parties on 24 March 2003; (iii) the upgrading of training processes in relation to safe boarding and alighting from trains by guards; and, (iv) the upgrading of the mentoring program for new guards, this is a very special case where the Court might consider not including in the monetary penalty to be imposed on the defendant a component for specific deterrence.

14 The prosecutor submitted the Court would, nevertheless, have regard to the need for general deterrence.

15 After taking the Court to the detail of Ms Wills' affidavit evidence Mr Garling properly conceded that the injuries suffered by Ms Ferguson were serious and had occurred because the defendant's training had been inadequate. He agreed that the Court should impose a penalty to mark its disapproval of that inadequacy as a reminder to employers generally that such inadequacy was "entirely unacceptable".

16 In relation to general deterrence, however, Mr Garling submitted there were three factors the Court should take into account: 1. The accident was a one-off occurrence; 2. The defendant entered an early plea of guilty; 3. The charge relating to the deficiency in training was very specific.

17 Counsel contended that in light of the extraordinary measures taken by the defendant to improve its training and to address the failure giving rise to the offence, specific deterrence would not weigh heavily in any consideration of penalty, if at all.

18 The essence of the charge against the defendant was that it failed to provide sufficient information, instruction and training to ensure that guards would be aware of and would avoid risks to their health and safety when boarding or alighting from trains. The defendant pleaded guilty to the charge. The maximum penalty available is $825,000.

19 In assessing the nature and quality of the offence there are two considerations that stand out: 1. Prior to the accident Ms Ferguson had not received adequate training or instruction regarding the boarding or alighting from trains, including the risks to personal safety of doing so in relation to moving trains. 2. Prior to the accident an informal practice existed amongst employees of the defendant whereby train guards would from time to time board or alight from moving trains.

20 The failure to provide adequate information, instruction and training about the dangers of boarding or alighting from moving trains and to allow such a practice to develop, was a serious deficiency in the defendant's approach to occupational health and safety and produced a grave risk. The gravity of the risk to health and safety flowing from the defendant's failure was manifested in the serious injuries to Ms Ferguson. It seems to me it was only through good fortune Ms Ferguson was not killed.

21 In accordance with the Full Bench judgment in Capral Aluminium Ltd v Workcover Authority of NSW (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 in assessing penalty, it is necessary that the Court have regard to the need for general deterrence. As the Full Bench observed at [75]: The need for general deterrence in relation to serious offences under the Act is undeniable.

22 This follows from the reference in par [73] of the judgment to Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 where Hungerford J at 388 said: 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.

23 At [74] of the judgment in Capral Aluminium the Full Bench said: 74 We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that 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.

24 At [77] the Full Bench said: 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. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46.

25 In light of the exceptional measures taken by the defendant to improve its safety training for employees and its obvious commitment to occupational health and safety, I propose to give very little weight to the need for specific deterrence in fixing penalty.

26 As to subjective factors, the defendant entered a plea of guilty at an early stage to the amended application for order and is entitled to a discount on penalty for the utilitarian value of that plea. The defendant has taken exceptional steps to avoid a recurrence of the incident that occurred on 25 November 1999, it has cooperated with the WorkCover Authority in its investigations and is very regretful of its conduct. The defendant has a demonstrably strong commitment to maintaining a safe workplace and gives a high priority to occupational health and safety. These are matters to be taken into account in mitigation. The aggravating factor is, of course, the defendant's unimpressive record of prior convictions.

27 Given the nature and quality of the offence I have decided to impose a penalty of $230,000. This amount is to be discounted by 25 per cent for the utilitarian value of the early guilty plea and by a further 10 per cent for the other subjective factors that I have referred to. This results in a fine of $149,500.

28 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $149,500 with a moiety thereof to the prosecutor.

4. The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ______________________

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