Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors - [2002] NSWIRComm 64 - NSWIRComm 1992 case summary — Zoe

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Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors

[2002] NSWIRComm 64

Industrial Relations Commission (NSW)|1992-06-30|Before: Walton J, Fisher CJ, Cullen JJ

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Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Walton J, Fisher CJ, Cullen JJ

Source

Original judgment source is linked above.

Judgment (68 paragraphs)

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Industrial Relations Commission of New South Wales in Court Session

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CITATION : Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64 PROSECUTOR: Workcover Authority of New South Wales (Inspector Jose Barbosa) PARTIES : DEFENDANT: Newstart 150 Pty Ltd t/as Style Wise Interiors FILE NUMBER: IRC 5003 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Alleged breach of s15(1) of the Occupational Health and Safety Act 1983 - Apprentice killed when crushed whilst attempting to move large sheets of particle and custom board - Alleged failure to undertake hazard identification as required by Occupational Health & Safety (Manual Handling) Regulation 1991 - Alleged failure to provide safe system of work - Alleged failure to provide adequate training to employees - Plea of guilty - Defendant contended it provided a system of 'on the job training' - No documented system of training - No records of training provided to employees maintained - Training provided on an ad hoc basis by tradesmen as and when appropriate work arose - Whether system of on the job training adequate - Observations as to the requirements for a system of on the job training - On the job training system considered to be inadequate - Risk foreseeable - Plea of guilty properly entered - Defendant convicted and fined Occupational Health and Safety Act 1983 LEGISLATION CITED : Occupational Health and Safety (Manual Handling) Regulation 1991 Fines Act 1996 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Department of Mineral Resources of NSW v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 Department of Mineral Resources v Kembla Coal & Coke (1999) 92 IR 8 Dowling v Overtop Pty Ltd (1998) 86 IR 319 Ferguson v Nelmac (1999) 92 IR 188 Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, 30 June 1992) Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 Legge v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 R v Sgroi (1989) 40 A Crim R 197 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Rahme (1989) 43 A Crim R 81 CASES CITED : State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 Sydney Water Corporation Limited v WorkCover Authority of New South Wales (Inspector Hes) (2000) 96 IR 116 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Insp. Riley) v Broken Hill Proprietary Co Ltd (1998) 83 IR 427 WorkCover Authority of New South Wales (Inspector Ankucic) v Lyndhurst Trading Group Pty Ltd (2000) 95 IR 462 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Pty Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268

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Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors. Prosecution under s15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2002] NSWIRComm 64 1 This matter concerns a prosecution brought by Inspector Jose Barbosa of the WorkCover Authority of New South Wales ("the prosecutor") of Newstart 150 Pty Ltd trading as Style Wise Interiors ("the defendant") pursuant to s15(1) of the Occupational Health & Safety Act 1983 ("the Act"). 2 Section 15 of the Act is in the following terms: 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. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. 3 The prosecution arose out of a fatal accident that occurred at the defendant's premises on Pittwater Rd Brookvale ("the defendant's premises"), whilst Mr Rene Van Bokhoven ("the deceased"), a twenty year old, third year apprentice shop-fitter, employed by the defendant, was undertaking a manual handling task. The defendant, as part of its business, manufactured cabinets for kitchens and bathrooms from the defendant's Brookvale premises. These cupboards were manufactured from large sheets of particle and custom board which the defendant kept stacked against the walls of its workroom. Racks had been attached to the walls of the workroom for the storage of the boards, however, it was clearly inadequate to deal with both the size and volume of the materials being stored. The defendant also, in the course of its business, used large sheets of laminex for coverings on bench-tops and the like. These large sheets would be cut to an appropriate size on the floor of the workroom in which the particle and custom boards were stored. 4 The accident occurred when the deceased and another worker, Mr Rocco Campanella, were trying to access a particular piece of board. That piece of board was stored behind a number of other larger boards stacked against the defendant's workroom wall. At the time of the accident, the deceased was supporting some 4 or 5 large sheets of custom board, each of approximately 60 kilograms in weight. The boards were standing upright, leaning against the deceased's outstretched hands, the deceased was leaning into the boards, using his bodyweight to support their weight. As the weight increased, the deceased would step slightly further backward, allowing more of his bodyweight to be used to support the boards. In doing so, he placed his foot on some laminate sheeting that had been left on the floor of the workroom. The laminate sheeting slipped, taking the deceased's feet from under him. The deceased fell to the concrete floor, the sheets of particle and custom board, weighing somewhere in the area of 200-300 kilograms, fell on top of him causing fatal injuries. Background 5 The prosecution was commenced by a summons issued on 7 November 2000. The summons contained the following charge: I, Jose Barbosa, of WorkCover Authority of New South Wales, 400 King St, Sydney, in the State of New South Wales, an Inspector appointed under Division 4 of Part 3 and empowered by s48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter, allege that Newstart 150 Pty Limited (A.C.N 001 882 560) trading as Style Wise Interiors, an incorporated company with its registered office located at Factory 3, 622 Pittwater Rd, Brookvale in the State of New South Wales DID FAIL To ensure the health, safety and welfare at work of its employees in relation to the business of cabinet manufacture, contrary to s15(1) of the Occupational Health and Safety Act 1983. 6 The particulars of the charge were in the following terms: It is alleged that the Defendant, Newstart 150 Pty Limited (A.C.N 001 882 560) trading as Style Wise Interiors, an employer, breached s15(1) of the Occupational Health and Safety Act 1983 on 13 October 1998 at its factory located at Factory 3, 622 Pittwater Road, in the State of New South Wales failed to ensure the health, safety and welfare at work of its employees at work, in particular Rene Van Bokhoven and Rocco Campanella. In particular, the defendant failed: a) To provide or maintain a system of work for the removal from storage of particle and custom boards that was safe and without risk to health; b) Failed to provide training to employees in respect of the removal from storage of particle and custom boards; c) Failed to provide or maintain a safe system for the storage of particle and custom boards; d) Failed to undertake a risk assessment of the manual handling tasks to be performed by its employees in compliance with the Occupational Health and Safety (Manual Handling) Regulation 1991.

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Statement of Agreed Facts 8 Upon the hearing of the matter, the prosecutor tendered a statement of agreed facts in the following terms: 1. At all material times the Prosecutor was an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under s48 of the said Act to institute proceedings in this matter. 2. At all material times Newstart 150 Pty Limited (A.C.NH 001 882 560) trading as Style Wise Interiors ("the Defendant"), was an incorporated company whose registered office is Factory 3, 622 Pittwater Road, Brookvale in the State of New South Wales. 3. The Defendant's breach under s15(1) of the Occupational Health & Safety Act is as follows:- 4. At all material times, the Defendant carried on the business of cabinet manufacture from a factory situated at 3/622 Pittwater Road, Brookvale. 5. On 13 October 1998, the Defendant employed seven (7) employees including Rene Van Bokhoven who was employed as a third year apprentice shop-fitter: his employment had commenced with the Defendant on about 28 September 1998. 6. Rene Van Bokhoven had completed three years of his apprenticeship before commencing employment with the Defendant. Upon commencing employment with the Defendant, he did not receive formal training by way of induction training nor manual handling training. 7. As part of its business, the Defendant would receive and store particle and custom boards in the following dimensions: (i) 2.4m x 1.2m 35mm ("35mm boards") (ii) 2.4m x 1.8m x 25mm ("25mm boards") (iii) 1.0m x 1.2m x 16mm ("16mm boards") According to the manufacturer's specifications the 2.4 x 1.2 x 35MM ("35mm boards") weighed 59kgs. 8. The usual practice of the defendant was to store the larger boards of thickness 35mm or 25mm in the delivery, receiving and storage area against the wall. However, if there was a large delivery of boards, the big loads were flat packed on the floor. The 16mm thick boards were usually stored against the wall, though sometimes they were stored in racks. 9. In addition, in its business the defendant used laminate sheets which were usually stored in rolls. It was the practice of the defendant to lay multiple sheets of laminex on the floor of the delivery, receiving and storage area to enable the sheets to be measured and cut whenever a requirement to do so arose within its operations. The requirement to do so usually arose weekly. When not required to be measured and cut, the laminex was rolled and stored in a separate location. 10. On 12 October 1998, the Defendant received a delivery of 2400 x 1800 x 25mm panels that were stored up against a wall. There were also stored against a wall a number of 2400 x 1200 x 35mm panels. These 35mm panels had been in position against the wall for approximately four days. 11. On 13 October 1998, the Manager of the business, Morris Callaghan allocated a job to Rene Van Bokhoven [to] remove a 16mm sheet of custom board which was located behind a number of boards, including 35mm boards, stacked against the wall of the factory behind. 12. The custom board sheet which Rene Van Bokhoven had to remove was located behind 4 to 5 boards which were part of a group of boards which were leaning against a wall in the delivery storage area. To complete the task Rene Van Bokhoven asked for the assistance of another employee of the defendant, Rocco Campanella. The boards nearest the top of the pile stacked against the wall included boards of 35mm thickness. 13. On the floor of the delivery storage area, proximate to the stack of boards were 4 to 5 sheets of laminex. These had been placed on the floor on 12 October 1998 and had not been removed, as the measuring and cutting process had not been completed. 14. Rocco Campanella stated that he learnt a procedure by observing other employees at the premises. The prosecution asserts that there was no safe system in place for the removal of a board from a stack of the boards. The defendant asserts that there was a system of 'on-the-job' training. 15. The procedure adopted by Rene Van Bokhoven and Rocco Campanella on 13 October 1998 was that Rene Van Bokhoven stood facing the stack of boards which he supported with his hands as the stack leaned past the vertical and towards him. Rocco Campanella would take one board and move it towards Rene Van Bokhoven, who would hold the weight. During this process Rene Van Bokhoven in order to support the weight of these boards stepped backward. In so doing Rene Van Bokhoven put his foot back onto laminex sheets, that Rocco Campanella has stated not to have seen, and slipped. Rene Van Bokhoven fell to the ground and the boards that Rene Van Bokhoven had been supporting fell on top of him. 16. As a result of this occurrence, Rene Van Bokhoven suffered fatal injuries. 17. The defendant Newstart 150 Pty Limited [ACN: 001 882 560] trading as Style Wise Interiors, on 13 October 1998 being an employer failed to ensure the health, safety and welfare of its employees at work, in particular Rene Van Bokhoven and Rocco Campanella, in particular it is asserted the Defendant failed: (i) To provide or maintain a system of work for the removal from storage of particle and custom board sheets that was safe and without risks to health; (ii) Failed to provide training to its employees in respect of the removal from storage of particle and custom board sheets; (iii) Failed to provide or maintain a safe system for the storage of particle and custom board sheets; (iv) Failed to undertake a risk assessment of a manual handling task to be performed by its employees in compliance with the Occupational Health and Safety Manual Handling Regulation 1991. 19. The Defendant Newstart 150 Pty Limited [ACN: 001 882 560] trading as Style Wise Interiors has had no prior convictions. The Prosecutor's Evidence 9 The prosecutor tendered a bundle of documents which included a series of colour photographs of the accident site, a report for the Coroner dated 13 October 1998 (which had annexed to it a copy of the Occupational Health and Safety (Manual Handling) Regulation 1991) , a copy of a document entitled "National Standard for Manual Handling [NOHSC: 1001 (1990)] and National Code of Practice for Manual Handling [NOHSC: 2005 (1990)], a copy of a WorkCover publication entitled "Manual Handling Legislative Requirements", a copy of a WorkCover publication entitled "Manual Handling Resources - Guide to Available Information" and a copy of a WorkCover publication entitled the "Backwatch Scoreboard". The bundle also contained a letter from Mr Macri, the sole director of the defendant, authorising the General Manager of Stylewise Interiors, Mr Morris Callaghan, to make a statement on behalf of the company, and statements made by Mr Morris Callaghan, Mr Rocco Campanella, Mr Christopher Favaloro, Mr Aldo Crapis, Mr David Hoare and Mr Michael Ball, an improvement notice issued on the defendant by WorkCover following the accident, an extract from the prosecutor's prior convictions database showing that the defendant had no prior convictions and a sample of the laminex sheeting that was on the floor of the loading dock at the time of the incident. 10 Clause 5 of the Occupational Health & Safety (Manual Handling) Regulation 1991 provided as follows: Adoption of National Standard 5 (1) The National Standard has effect as if it formed part of this Regulation. (2) Except as provided by subclause (3), references in the National Standard to expressions that are defined in the Act have the same meanings as they have in the Act rather than the meanings they are given by the Standard. (3) In this Regulation and in the National Standard, a reference to an employer is to be construed as including a reference to a self-employed person within the meaning of the Act. 11 The 'standard' referred to in the regulations required employers to "examine and assess" manual handling activities which were "likely to be a risk to health and safety". Such assessment was required to be carried out "in consultation with employees" and their representatives and was to take account of factors, such as, actions and movements, workplace and workstation layouts, working postures and positions, the duration and frequency of manual handling tasks, the location of loads and the distances moved, weights and forces, the characteristics of the loads and equipment, the work organisation, the work environment, the skills experience and age of the workforce, clothing, temporary or permanent special needs and any other factor which was considered relevant by the employer, employee or the employees' representative. 12 Clause 5 of the Standard provided for "Risk control" was in the following terms: 5.1 An employer shall ensure, as far as workable, that the risks associated with manual handling are controlled.

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A. Either in the racks, against the walls or on the floor depending on space availability. The Defendant's Evidence 23 Mr Giusepe Macri, the sole director of the defendant, Mr Michael Ball, a tradesman employed by the defendant, and Mr Chris Favaloro, an employee of a company associated with the defendant ("Giro Constructions") operating out of the same premises as the defendant, gave evidence by affidavit for the defendant. Mr Macri and Mr Ball were required for cross-examination. 24 Mr Macri's affidavit went primarily to three matters, that is, the structure of the defendant company, the actions taken by the defendant following the accident and the financial position of the defendant. 25 As to the training provided to employees of the defendant and the actions taken by the defendant following the accident, Mr Macri gave the following evidence: Up until the time of the accident the training which was given to employees was on the job training. This training was given orally to employees by management. In the case of the apprentices, the training was provided in relation to manual handling and the like, by the tradesmen with whom the apprentice was working from time to time. I made inquiries of Callaghan as to the training van Bokhoven had received in relation to this employment. … However, I also ascertained that as van Bokhoven was a third year apprentice, certain assumptions were made as to his level of skills in relation to his attendance at both TAFE and his general experience in industry. Since the accident, I have taken steps to ensure, on behalf of Newstart, that the oral instruction and training is now supplemented by way of formal induction training. I have also ensured that a hazard assessment has been undertaken of potential risk within the shop. 26 In cross-examination, Mr Macri indicated that the training of apprentices was done on what may only be described as on an ad hoc basis. That is, the apprentice would move from job to job as the needs of the business required. The training provided would vary depending upon the particular work to be carried out. There were no records kept of when the apprentice was working with a particular tradesman nor what training was provided. He stated that part of the changes that had been made following the accident included the recording of all training provided to employees. 27 Mr Macri gave evidence that he had received an improvement notice from WorkCover and that all recommendations within the improvement notice had been adopted at his direction. The changes to the operation of the business were adopted immediately upon the resumption of work following the business having closed for a week. As Mr Macri indicated, the business could have reopened immediately, however, as a mark of respect for the deceased and his family, he shut the shop for a week. 28 As to the financial position of the defendant, Mr Macri annexed to his affidavit tax returns and financial statements for 1998 through to 2001. The material indicated that the defendant had operated at a profit of $13,503 in 1998. However, accumulated losses resulted in the defendant running at a loss of $2,121 for that year. In 1999, the defendant had an operating profit of $42,716 and accumulated losses of $2,121 from the previous year resulting in a profit of $40,595 for that year. In 2000, the defendant took substantially less gross revenue resulting in an operating loss for that year of $50,351 and an accumulated loss of $9,756. In 2001, the defendant went through a restructuring process, the precise detail of which was not disclosed in the evidence. In cross-examination, Mr Macri conceded that it was expected that the business would run at a loss in that year due to the increased costs associated with the restructure. However, he could not provide an indication as to when it was expected the business would begin to once again operate at a profit. As the financial information disclosed, the defendant operated at a loss for 2001 of $152,943, resulting in an accumulated loss of some $162,699. This information appears to be confirmed in the further financial information produced on 26 November 2001. 29 In cross-examination, Mr Macri gave evidence of the defendant having been kept afloat by an overdraft facility in the amount of $90,000 that was secured on his family home. At the time of the receipt of final submissions that overdraft facility was drawn in an amount of approximately $77,000. 30 Mr Ball, in his affidavit of 30 August 2001, gave the following evidence in addition to that which he provided in his statement to the prosecutor outlined above: It was the responsibility of the tradesmen when working with an apprentice to provide instruction to the apprentice as to work procedure. This instruction and training was carried out orally by the tradesman as part of the day to day work schedule. In short, Newstart trained its employees, including apprentices, by way of job instruction training. At the time of the accident, which led to the death of Rene van Bokhoven ("van Bokhoven") there existed no written procedures within Newstart. However, apprentices were observed by the tradesmen and given instruction until such time as the tradesmen were satisfied that the apprentice knew the proper procedure for the nominated task. In relation to the movement of laminate boards within the shop, the procedure which was adopted within the shop prior to the accident was that in relation to the heavier boards, such as 25mm MDF or 33mm MDF board, it was the requirement when these boards came to be moved that two persons would move a single board from one area of the shop to another in order to obtain access to a required laminate board. The only type of sheets which were moved in a manner similar to that adopted by van Bokhoven and Rocco Campanella ("Campanella") was in relation to light sheets of between 10-16mm thickness when it would be not unusual for one or two boards to be supported by one person by way of leaning them towards him whilst a third board was obtained. If more than one or two boards were required to be moved then a procedure similar to that outlined for the heavy boards would be adopted until such time as access could be gained by the leaning forward of one or two boards. Whilst I cannot be certain that I gave any such instruction to van Bokhoven or Campanella, I knew this to be the practice adopted within the shop and based on my knowledge of the practices adopted generally as to the training of apprentices, whoever was the tradesman who initially observed both Campanella and van Bokhoven to move boards within the shop would have had to have been satisfied that they could do this job correctly. At no time to the best of my recollection, was I ever advised by another tradesman that there was a continuing requirement to observe van Bokhoven or Campanella when it came time to ask them to move boards within the shop in order to gain access to a desired board. 31 In cross-examination, Mr Ball confirmed that apprentices would move around the defendant's premises working on various jobs and under the supervision of various tradesmen. The evidence he gave in this regard was in the following terms:

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A. Yes. 34 Mr Ball also gave evidence of a hazard identification assessment having been carried out following the accident and a set of written training procedures having been developed for utilisation in initial training. This training was in addition to the regular "on-the-job" training. He gave evidence of the defendant now requiring its apprentices to specifically be trained as to the manual handling of custom or particle boards. 35 Mr Favaloro's evidence went primarily to a meeting which he and Mr Macri had with the deceased's parents following the accident and the expressions of condolence and support offered by Mr Macri on behalf of the defendant. He gave evidence as to the business having been closed for one week as a mark of respect to the deceased and his family. Mr Favaloro indicated he had been working in the premises occupied by the defendant and Giro Construction Group ("Giro") for a period of approximately 14 months and that the loading dock was the area normally used for the laying out and cutting of laminex. Giro has offices within the premises occupied by Newstart 150 Pty Limited. His evidence in this regard was in the following terms: I had worked at the premises occupied by Newstart and Giro for a period of approximately 14 months prior to the accident and it was known to me that form time to time in order to mark out and cut laminex sheeting, that it was laid in the loading dock area and that when accessing the area one had to be observant that there were not laminex sheets upon the ground. I also had a specific conversation with Morris Callaghan at the commencement of my employment, warning me about this area and advising me not to walk upon the laminex sheets. 36 Mr Favaloro also stated that he was aware that "whatever changes were recommended within the shop for the storage of materials, including laminate sheets, were immediately in line with WorkCover's directions". Submissions Submission by Prosecutor 37 Ms T McDonald of counsel, who appeared for the prosecutor, submitted that it was the objective seriousness of the offence that was the primary factor for consideration when determining sentence: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474. In the present matter the objective seriousness of the offence should be determined by having regard to the maximum penalty ($550,000), the need for deterrence and the nature and quality of the offence in that it involved obvious and foreseeable risks. 38 As to the nature and quality of the offence, the prosecutor submitted that the storing of large, heavy, cumbersome boards in a precarious manner, such as on edge against a wall, gave rise to an obvious risk of injury. Ms McDonald submitted that, from the photographs in evidence, the Court could infer that the storage of the boards against the wall was inherently unsafe. That danger was aggravated by the presence of the plastic laminex sheeting on the workroom floor near where the employees would be required to move the boards. 39 Further, in the absence of a proper system of work, it was reasonably foreseeable that the defendant's employees would adopt a means of moving the boards in the workroom that was unsafe, such as that method adopted on the day of the accident. It was also reasonably foreseeable that in storing the boards in the same area used for the laying out and cutting of laminex sheeting (a procedure which, on the evidence, was conducted at least weekly) there would be an increased risk of injury by the presence of the sheeting on the ground. 40 It was submitted that the existence of settled safety procedures is a factor which may mitigate the seriousness of an offence. However, in this case, there was no evidence of any on-the-job training having been received by the deceased or Mr Campanella. It was submitted the defendant had no proper work practices at its site with respect of the manual handling tasks undertaken by the deceased and Mr Campanella. Ms McDonald submitted that the very vague evidence of a system of 'supervision by tradesmen' does not establish a settled safety procedure which was known to employees. To the extent that there is evidence of a procedure, it should not be sufficient to warrant a reduction in the assessment of the seriousness of the offence in the present circumstances. This was not a situation where a settled safety procedure existed that was not followed due to a failure to supervise. The particulars of the offence against this defendant related to more fundamental aspects of workplace safety and, in particular, the work procedures at the defendant's premises. 41 To meet its obligations under the Act, an employer is required to maintain, it was contended, constant vigilance and take all practical precautions to ensure safety in the workplace: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610. In this matter, the defendant, in breach of the Manual Handling regulations, had not undertaken a risk assessment for the manual handling tasks undertaken on the day of the accident and there was no system of work in place for the performance of the manual handling tasks. There had not been any training provided to employees for the performance of the relevant tasks. 42 It was submitted that whilst the actual injury resulting from a breach of the Act does not of itself determine the seriousness of an offence, the occurrence of death or serious injury is relevant in that it is a manifestation of the degree of seriousness of the relevant detriment to safety: Ferguson v Nelmac (1999) 92 IR 188 at 204 and Tyler v Sydney Electricity (1993) 47 IR 1. 43 Further, it was submitted the seriousness of this offence was reinforced by the simple and straightforward remedial steps that the defendant could have implemented to meet its obligations under the Act. The defendant was issued with an improvement notice by Inspector Lyon following the accident. Since the accident, the defendant has constructed new panel-board storage racks to take the surplus boards, increased the racking system, required staff to use at least 2 or 3 persons when attempting to shift the larger boards and formalised the system of work and training for the manual handling tasks undertaken in the course of its business. 44 As for the subjective elements, the prosecutor submitted the defendant had no prior convictions, assisted the prosecutor in its investigations and pleaded guilty. These were all matters that should be taken into account in mitigation of the offence, noting, in particular, the plea of guilty and the utilitarian considerations that flow from having a matter determined by way of a plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383. The defendant had provided some assistance to the family of the deceased and provided counselling to other employees. Further, the defendant in these proceedings had instituted changed procedures following the accident and complied with the requirements of the improvement notice issued by the Inspector.

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Prosecutor's Further Written Submissions 45 At the sentencing hearing, issues arose as to evidence going to the financial situation of the defendant. Those ambiguities related to, amongst other things, the position of the defendant's bank overdraft, the status of negative figures in the assets column of the defendant's books of account, the increase in turnover in 2001 and the figures provided as to trade figures. The defendant was directed to file some additional evidence going to these matters and the parties were to provide written submissions as to these matters. 46 In the prosecutor's further written submissions on the new financial information, it was accepted that s6 of the Fines Act 1996 required the means of the defendant to be taken into account by the Court in assessing penalty. Further, the prosecutor submitted that the Court, in its discretion, was entitled to take into account the fact the defendant was only a small organisation, employing only six persons, when determining sentence: WorkCover Authority of New South Wales (Inspector Ankucic) v Lyndhurst Trading Group Pty Ltd (2000) 95 IR 462 . However, it was submitted the comments of Wright J in Ferguson needed to be kept firmly in mind: 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. 47 The prosecutor acknowledged that the receipt of the final figures for the 2001 year indicated a total turnover figure of $533,529. However, in the prosecutor's submission, there remained a number of inconsistencies in the defendant's evidence. These related to increases in turnover in the order of $77,000 whilst the loss suffered by the company increased by some $100,000. Further, there were increases in the figures associated with the use of sub-contractors from $3,606 in 2000 to $97,737 in 2001, with an additional cost of $40,000 in 2001 for 'consultancy fees', an entry that was not present in the 2000 balance sheet. There was no evidence as to whether these figures were ongoing costs or were one-off costs associated with the restructuring of the defendant. There was also some difficulty in interpreting the information associated with trade debtors. 48 It was submitted that, given the primacy of the objective seriousness of the offence in determining penalty, the financial situation of the defendant needs to be carefully scrutinised: Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435. The evidentiary onus on establishing matters in mitigation, including the financial situation of the defendant, lies with the defendant. The evidence of the defendant's financial situation is problematic in that it raises issues that require clarification. 49 It was conceded that there was some evidence of the defendant being in financial difficulty and the Court was entitled to take this into account. However, the weight which ought be attributed to the financial situation of the defendant ought be considerably less, given the evidence of recent restructure and expected downturn in trade figures.

[62]

Submissions for the Defendant 50 Mr R Moore of counsel, who appeared for the defendant, accepted that the measure of penalty ought lie in the nature and quality of the offence and not merely in the result of the offence. It was the objective seriousness of the offence that ought be of primary focus. The defendant agreed that the maximum penalty was $550,000. 51 In this regard, it was submitted that the degree of foreseeability was a significant factor to be taken into account when assessing the level of culpability of a defendant: Department of Mineral Resources v Kembla Coal & Coke (1999) 92 IR 8. It was conceded that there was a risk of slipping involved with laminate sheeting on the floor and that there were risks, such as dropping materials, associated with the manual handling tasks. However, Mr Moore submitted that it was not foreseeable that a fatality would arise in the circumstances generally applying to the manual handling at the premises. It was submitted that it could not be reasonably foreseen that the risk created by the laminate in the work area would act in the manner as it did on the day of the accident (that is, that a risk would be created in combination with the manual handling tasks normally performed at that place). 52 Further, it was submitted that whilst there was absent any written procedure for the manual handling tasks, the evidence of Mr Campanella, Mr Hoare, Mr Favaloro and, in particular, the evidence of Mr Ball all indicate that the employees of the defendant were aware of the requirement to carry the heavier boards using two persons. Indeed, on the day of the accident, Mr Campanella had approached the deceased to obtain assistance with the moving of heavier boards. 53 Mr Moore submitted that, despite there being no written procedure, the size of the defendant's organisation and its workplace, the number of employees, the lack of complexity in the nature of the tasks being undertaken and the fact that each of the employees who gave evidence in the proceedings, in fact, knew that the normal practice for moving heavier boards was to require two persons, ought satisfy the Court that there was adequate communication as to the normal and acceptable practice at the defendant's premises. Further, Mr Ball gave evidence of having witnessed the deceased having assisted in moving boards around the workplace in accordance with that practice some two weeks prior to the accident. 54 Noting the evidence of Mr Callaghan, as to the guarding of equipment and ensuring the workshop was regularly swept, it was submitted that the defendant was running its business in a responsible manner. This was supported by the fact that this is the first prosecution against the defendant. 55 Mr Moore conceded that specific deterrence needed to feature in the assessment of penalty. However, he submitted that any penalty ought not be so oppressive as to warrant the defendant having to close its doors. In that regard, Mr Moore submitted that if the Court were to accept the evidence of the defendant having a turnover (not profit) of some $500,000 to $600,000, then a penalty of only 10% of the maximum, that is $55,000, would still be a severe penalty, given the nature of the defendant's operations and financial situation. Further, the defendant is currently operating on an overdraft secured against Mr Macri's family home. 56 As to subjective features, the defendant submitted there were several matters which ought be taken into account in mitigation of penalty. These included the contrition of the defendant, the support provided to the family of the deceased and the co-operation extended to the prosecutor in its investigations. It was submitted that the steps taken following the accident to ensure safety, in prompt compliance with the improvement certificate issued by the prosecutor, ought be treated by the Court as mitigating factors. There should also be a discount for the lack of prior convictions and the generally safe working environment provided by the defendant. 57 Mr Moore submitted that both the structure of the Act and s6 of the Fines Act 1996 required the means of the defendant to be considered by the Court when imposing sentence. He also noted that the penalty for an individual offender is $55,000. In light of the financial information provided, it was submitted that the observations of Hungerford J in Dowling v Overtop Pty Ltd (1998) 86 IR 319 at 333 (cited in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Pty Ltd (2000) 95 IR 383) ought be kept in mind; that is, when determining sentence, it ought be kept in mind whether the sentence would be "oppressive".

[64]

Relevant General Principles 61 The judgment of the Full Bench of the Court in Lawrenson Diecasting (at 474 - 475) is an important, contemporary statement of principles to be applied in relation to sentencing for an offence under s15(1) of the Act. That exposition of principle has been followed on numerous occasions by both the Full Bench and single Members of this Court: Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159; State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218, Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57, Sydney Water Corporation Limited v WorkCover Authority of New South Wales (Inspector Hes) (2000) 96 IR 116, Manpac Industries and Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84. 62 A foremost principle espoused in Lawrenson Diecasting is that the primary factor to be considered when determining an appropriate sentence under the Act is the objective seriousness of the offence charged, that is, in the nature and quality of the particular offence charged. Subjective factors which mitigate the seriousness of the offence must be taken into account. However, they must play a subservient or secondary role to the consideration of the nature and quality of the offence: WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions (No.2) (2001) 109 IR 347 at [19]. A significant factor indicating the existence of a serious offence is foreseeability of the risk to safety: Capral Aluminium at [81]. 63 I shall also adopt, for the purposes of this judgment, the statement of principles in McDonalds at 427 - 433 and those articulated by Wright J, President, in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39. (See also the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268, approved by the Full Bench in Legge v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319 at [16]). Consideration 64 As earlier mentioned, it is well settled that the objective assessment of the nature and seriousness of an offence is the primary determinant of penalty: Lawrenson Diecasting . In this regard, I would reiterate what was observed by the Full Court of the former Industrial Court of New South Wales in Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, 30 June 1992) in which the Full Court stated (at 9) (approved in Lawrenson Diecasting at 476): The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence. The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences. 65 As was emphasised recently by Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [43], the penalty imposed must be determined by reference to the offence . In this matter, the defendant has entered a plea of guilty (properly, in my view) to an offence under s15(1) of the Act which was particularised in the summons as containing four elements: a failure to provide a safe system for the storage of the particle and custom board; a failure to provide a safe system for the handling of those boards; a failure to provide adequate training in relation to the handling of the boards; and, a failure to undertake a risk assessment of the manual handling tasks in accordance with the relevant regulations. 66 In broad terms, the detriments to safety occasioned by the defendant, relevant to this matter, arise from a failure to provide and maintain an adequate system of work for the storage of and removal from storage of particle and custom boards and a failure to adequately train employees in relation to the handling of such boards. 67 In relation to the storage of the boards, the evidence of Mr Campanella and, in particular, the evidence of Mr Favaloro and Mr Ball, make it plain that there was effectively no system in place for the storage of the various boards. According to their evidence, they were stored "where ever we have got room", that is, either on the floor of the workroom or against the wall of the workroom "depending on space availability". Whilst there was some racking mounted to the wall, the evidence was that this was used only for the 16mm boards and, in any event, there was not adequate storage space in those racks to deal with the number of 16mm boards alone. 68 Further, the photographs tendered by the prosecutor, together with the evidence of Mr Favaloro and Mr Ball, make it clear that the various boards were intermingled when stacked up against the wall, that is, there was no separation of the various types of board. The lighter and more frequently needed boards were stacked against the walls of the workroom amongst the heavier boards. Indeed, this was the circumstance which faced the deceased on the day of the accident which gave rise to the deceased supporting the larger, heavier boards in order to permit access in the stack to the 16mm boards laying behind. 69 I am satisfied that the defendant has failed to provide an adequate system for the storage of the boards. I would agree with the submission of the prosecutor that the storage of the boards by the means adopted was intrinsically unsafe. The ad hoc storage of the various size and type of boards, precariously positioned against the walls of the defendant's workroom, in my view, gave rise to risks to the health and safety of the defendant's workforce. This failure was, in my view, compounded by the failure to provide any adequate method of work or system for the manual handling of the boards. 70 The defendant submitted that it had in place a system or practice for the removal of boards from their stored position. That practice was said to be twofold. If 16mm boards were to be removed from their stored position so as to permit access to boards further back in the relevant stack, two of the defendant's employees would be involved. One would take the boards from their resting position and lean them against the other employee. The boards would be supported in the free standing position. If the 25mm or 35mm boards were to be moved from their resting position, they would be moved to another stack of boards against the wall. The defendant contended that on the day of the accident the deceased and Mr Campanella had adopted the system normally reserved for the 16mm boards when moving the larger 35mm boards. 71 The existence of settled safety procedures and instructions is a factor which may mitigate the seriousness of an offence under the Act: see Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 342; WorkCover Authority of New South Wales (Insp. Riley) v Broken Hill Proprietary Co Ltd (1998) 83 IR 427 at 429; Department of Mineral Resources (Insp. McKensey) v Kembla Coal at 25, WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited (2000) 100 IR 23 (at [33]). The practices for the movement of boards adopted by the defendant in this matter do constitute a basis for some mitigation of the seriousness of the offence. 72 However, the systems of work at the defendant's premises were inadequate in at least two respects. Firstly, it would appear that the system of work was not promulgated in a uniform and consistent manner. I agree with the submission of the prosecutor that the evidence of a vague system of 'supervision by tradesmen' does not establish a settled system of work meeting the requirements of the Act. Given the nature of the system adopted there was no surety that the defendant's practices would be applied uniformly or that it would be communicated to all employees as there was a fundamental weakness in the communication of the system. 73 Secondly, the evidence in these proceedings indicates defects in the practice adopted for the movement of the board per se. The only direct evidence of this practice, that is, the practice of removing the various sized boards from their stored position, was provided by Mr Ball in his affidavit of 30 August 2001. He referred to the different practices adopted with respect to stacks of 25 and 35mm boards and stacks of 10 - 16mm boards. However, his evidence does not identify the practices which would be applied where a stack consisted of a mixture of 16mm and larger boards. Mr Campanella, in his statement of 3 November 1998, gave evidence that where boards were moved from 'free standing stacks', there would always be at least two employees involved. However, he did not draw any distinction in the practice adopted between the various size of boards. 74 75 There would appear, therefore, to be a lack of precision in specification of the practice adopted for moving boards in stacks where those stacks contained a mixture of small and large boards. 76 Further, there were failures associated with the handling of the boards in the same area where the cutting of laminate occurred. Whilst each of the defendant's employees gave evidence that the laminex sheeting was measured and cut on the floor of the workroom and that this activity was done with relative frequency (and that the laminate was packed away after use), none of the witnesses gave evidence of there having been some practice prohibiting the movement of boards whilst the laminate was in position on the floor ready for cutting. Further, the evidence as to the storage of the laminate was also somewhat inconsistent. Mr Callaghan stated that it "normally comes in a roll form and is stored rolled up on the office roof", whereas Mr Campanella, Mr Ball and Mr Hoare all gave evidence that the laminate was stored either in racks, rolled and stored on edge, or in a box, depending on how it was delivered. Mr Crapis, the employee who had left the sheets on the ground on the evening before the accident, gave evidence that they were simply "put away somewhere". 77 These failures to provide an adequate system of work also had a consequent effect on the sufficiency of any training provided to the defendant's workforce. 78 There is no dispute that such training, as was provided to the employees of the defendant, was "on-the-job" training. Hence, the training was not formalised classroom training. Such training was provided by the defendant at the workplace during the course of the defendant's ordinary operations. 79 80 "On-the-job" training may be adequate to satisfy the obligations imposed on an employer by s15(1) of the Act: Genner Constructions , WorkCover Authority of New South Wales (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 at [24] - [25] and WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 at [71]. In this regard, I would refer to the statement of the Full Bench in Genner Constructions (at [57] - [58]): 57 The appellant pointed to the evidence of Mr Genner to the effect that he had provided regular "on-the-job" training and instruction to Mr Ingram over many years. The evidence of Mr Genner was that this training encompassed issues of safety, including methods of directing vehicles entering and leaving worksites. Inspector Chadwick of the WorkCover Authority and Mr Johnson, an expert called by the appellant in the proceedings at first instance, agreed that "on-the-job" training can be a very effective method of training workers. However, whilst such training may, with respect to particular work, be sufficient to ensure a safe workplace, there will be many cases in which more detailed, comprehensive or systematic training and instruction will be required: see, for example, WorkCover Authority of New South Wales (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 at [24]-[25] and WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 at [71]. 58 The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education). 81 The Full Bench continued (at [62]): Whilst the lack of documented procedures will not always indicate a deficiency in the training provided by an employer it may, in some cases, constitute an indication the training was less comprehensive or systematic than was required. Where a worker may be required to autonomously adopt alternative work procedures in response to changing circumstances and those alterations may present serious risks to that worker or others, it would be prudent, at the very least, to ensure that "on-the-job" training was formalised and documented with a view to ensuring a comprehensive coverage of all facets of the work and full appreciation of any safety risks by the employee concerned. 82 The prosecutor contended that the defendant failed to provide training to its employees with respect to the removal from storage of the boards in two respects. Firstly, and perhaps most fundamentally, it was submitted that, when considered in the light of failures in the 'systems of work', the method of training "on-the-job", resulted in a simple failure to train per se all employees of the defendant. Thus, it was submitted, the extent of 'the training' was inadequate. Secondly, it was contended that the standard of the training provided to the employees was inadequate. 83 The evidence of Mr Macri, Mr Callaghan, Mr Campanella and Mr Ball makes it plain that there was no induction training provided to new employees; there was no formal training in place in relation to any aspect of the business and, in particular, in relation to the manual handling activities; the limited training that was undertaken was done on an ad hoc basis and related to the particular tasks which were at hand. There was no record kept of what training any particular employee had done. 84 This evidence, in my view, indicates that there was not in operation at the defendant's premises, what could properly be referred to as, a "system" of "on-the-job" training. By this I mean there was an absence of a coherent and systematic process for the instruction of employees. The evidence of Mr Macri and Mr Callaghan, as to "certain assumptions" having been made as to the deceased's training and level of competence, is consistent with such a finding. So is the evidence of Mr Campanella, who stated that he did not remember having been specifically trained in manual handling activities. Rather, he had simply "picked it up" watching others move the boards around the premises. 85 Further, the evidence of Mr Callaghan was that the victim had not been provided with any manual handling training. Mr Ball stated that whilst he had worked with the deceased, he could not be certain that he had given any instruction to him as to the purported system for retrieving the boards. He thought that some instruction must have been given because he had not been advised by another tradesman that the deceased should be further 'observed' as to the practice of moving boards. I would note that in the final stages of his re-examination, Mr Ball gave evidence of having seen the deceased retrieve and move boards in accordance with the purported practice, approximately two weeks before the accident. However, the boards being moved at the time were 16mm boards and the method adopted was that appropriate for the 16mm boards. 86 87 In moving the boards on the day of the accident, it would appear that the deceased adopted an ad hoc procedure that was something akin to that used for the 16mm boards (noting that at the time of the accident the number of boards supported by the deceased was greater than what was considered appropriate, even for the 16mm boards, according to the defendant's practice). 88 89 There must be some doubt as to whether the deceased did receive training as to the practices adopted by the defendant for moving the boards. There is certainly no direct evidence of that fact. At the end of the day, the defendant was forced to rely upon the existence of the ad hoc system of training provided by tradespersons to demonstrate that such training probably occurred. That reliance demonstrates, in itself (and without the need to finally conclude whether the deceased did receive the required training), the failings in the system of training, as there can be no guarantee that the deceased was so properly instructed. This conclusion is all the more significant having regard to the tender years of the deceased and his position as an apprentice. 90 91 Consistent with what was stated by the Full Bench in Genner Constructions, I would agree with the submissions of the defendant that the size of the defendant's operation, the organisation of work and the nature of the activities that are undertaken within a particular operation are relevant when considering whether training provided to employees is adequate to ensure the health and safety of the workforce. 92 However, when considering the adequacy of any "on-the-job" training, it is imperative to reiterate that the very purpose of the Act is to ensure the introduction of safe working practices so that accidents may be prevented. As was observed by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257 : The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

[65]

93 The training in this regard needs to be seen in the light of the offence charged. It is not training in relation to health and safety at large that is to be considered, it is a system of training that related to the manual handling of the boards having regard to their various shapes, size and weight. These manual handling activities were a fundamental and daily aspect of the defendant's operations. Further, it should be noted that the failure to provide adequate training involved a workforce comprising of some seven employees, three of whom were relatively young and inexperienced apprentices. In my view, the presence of young and inexperienced persons in the workforce gives rise to an increased responsibility on the part of an employer to ensure adequate training is provided, particularly as to matters concerning the occupational health and safety of those persons. 94 In my view, for a system of "on-the-job" training to satisfy the requirements of the Act, as with any purported system of training, it must be sufficiently extensive to ensure that the objects of the Act are achieved. The employer must ensure that, by such training, all employees are both informed of the systems operated by the employer and given proper instruction as to the safe means of carrying out the full range of manual handling tasks. The practice adopted at the defendant's premises were, in my view, patently inadequate to ensure this end was achieved for all employees. 95 In the present matter, the defendant conceded that there were foreseeable risks associated with the manual handling tasks in which the deceased was involved on the day of the accident. That a risk to injury was foreseeable will necessarily lead to an increase in the seriousness of the offence: Capral Aluminium (at [81] - [82]). 96 Further, simple and straightforward steps were available to prevent the risk to safety. This conclusion is available having regard to the steps taken by the defendant after the accident. 97 98 As was stated in Kembla Coal and Coke Pty Ltd (at 36): The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant, in my view, to assessing the seriousness of the offence in this case: see WorkCover Authority of New South Wales v ACI Operations Pty Limited (unreported, Schmidt J, CT93/1025, 25 February 1994). Whilst the response by the defendants after the accidents was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendants to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (at 21 - 22).

[66]

See also McDonalds (at 450 - 451). 99 Following the accident the defendant was served with an improvement notice. That notice required various actions to be taken. Those actions included the construction of new panel-board storage racks to take the surplus boards, an increased racking system, a requirement that staff use at least 2 or 3 persons when attempting to shift the larger boards and a formalisation of the system of work and training for the manual handling tasks undertaken in the course of its business. They were steps which would have reduced the risks to safety occasioned by the defendant in this matter. 100 However, whilst it was not disputed that manual handling tasks gave rise to a foreseeable risk of injury, the defendant submitted that having regard to the gravity of the risk so created, it was not foreseeable that a fatality would arise in the circumstances of defendant's premises. It was contended the steps taken to provide a safe system of work should be viewed in that light. 101 It should be emphasised that the gravity of the consequences of an accident do not, of themselves, dictate the seriousness of the offence. Similarly, the question of foreseeability is to be tested against the risk of injury occasioned and not by reference to the prospects of an injury arising from a particular accident. However, the consequences of an accident that flows from a breach of the Act may be relevant as a manifestation of the gravity or otherwise of the potential risk to safety flowing from the breach and the culpability of the defendant. To reiterate what was stated by the Full Bench in Inspector Hannah v Wonar Pty Limited (at 9), "a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences." 102 In my view, it was 'quite unlikely' that the breach here in question, being a failure to provide a safe system for storage of large particle and custom boards, a failure to develop or provide a safe system for the handling of the boards and a failure to adequately train employees in a safe system relating to the manual handling of the boards, would give rise to a risk of fatality, as occurred in this case. However, it was likely that the risks to safety occasioned by these failures would lead to serious injury. The boards in question were large, cumbersome and of not an insignificant weight. The handling of them was a regular, if not daily, feature of the work carried out by the defendant's employees. The manual handling task was undertaken in an environment where, at least weekly, there was slippery laminate material on the ground. 103 The prosecutor submitted that both general and specific deterrence ought to feature in the assessment of penalty. The defendant conceded as much. The appropriate manner for the Court to approach the deterrent aspect of imposing a sentence was settled in Capral Aluminium (at [71] - [80]). In accordance with the principles there set out, I shall take into account both elements of deterrence in the assessment of penalty in this matter. In particular, I note, with respect to specific deterrence, the defendant continues to be an employer within the industry. 104 I shall now turn to the remaining subjective features. Both the prosecutor and the defendant submitted that the defendant had expressed contrition and, accordingly, should be entitled to mitigation of the sentence otherwise imposed. Contrition, repentance and remorse after an offence are mitigating factors which may lead to a reduction in the sentence otherwise to be imposed: Hoipo at [64]. In this respect, I also have had regard to the judgment of the Full Bench in Corinthian at [17] and WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 (at [73]). 105 In this regard, it should be noted that during the proceedings I raised some concerns with the parties as to the demeanour of Mr Macri in the witness box. On balance, and having raised the matter with counsel during the proceedings, I do not consider that Mr Macri's demeanour should stand against a conclusion that the defendant was contrite. There is objective evidence of the defendant's contrition. The defendant visited and offered assistance to the family of the deceased shortly after the accident. Further, it closed it's operations for one week following the accident (having been given permission to continue its operations from WorkCover) as a mark of respect for the deceased and to give the defendant's other employees an opportunity to deal with the death of their colleague. I am satisfied that the defendant has expressed contrition. 106 I agree with the submission of the defendant that it should be entitled to have taken into account in mitigation of penalty the assistance that had been provided to the prosecutor, the actions taken following the accident and measures introduced by the defendant to overcome deficiencies in safety which the accident had highlighted: Warman International (at 339). The defendant has no prior convictions. I am satisfied that, noting its lack of prior convictions, the nature and size of the operations and the measures adopted to provide a safe workplace as averted to by Mr Callaghan, the defendant has operated as a good industrial citizen. 107 I have recently discussed the significance of the plea of guilty in sentencing proceedings and the application of the judgment in R v Thomson in Schrader at [76] - [82]. I adopt that discussion for the purposes of this judgment. I am satisfied, in concurrence with the submission of both the prosecutor and the defendant, that the plea of guilty was entered at the earliest reasonable opportunity. 108 109 In my view, a discount of 30%, inclusive of utilitarian considerations, having in mind the principles established in R v Thomson; R v Houlton, is appropriate in this matter. 110 111 One matter which does require some additional discussion is the reliance by the defendant on its financial position. I would adopt what I stated in Schrader at [83] - [86]. In particular, I would reiterate what I stated in Lyndhurst at 476: Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see Rahme (1989) 43 A Crim R 81 at 86 112 113 Having reviewed the financial material available, I would agree with the further written submissions of the prosecutor that there are some matters raised in the financial material that are not adequately addressed in the defendant's submissions. However, I am satisfied, to the requisite standard, that the defendant is in difficult financial circumstances, carrying both significant liabilities and trading on an overdraft facility (which, on the evidence, is significantly drawn). The maximum penalty was agreed to be $550,000. I accept the submission that the defendant is a small business and that, in the financial circumstances of the defendant, to impose a significant fine would be, in my view, "oppressive". However, it needs be emphasised that the nature and seriousness of the offence is the primary determinant of penalty; subjective features ought not result in a reduction in penalty that fails to recognise the seriousness of the offence. 114 115 The defendant has pleaded guilty. I consider that the plea was properly entered. For the foregoing reasons, I consider, after discount for subjective factors earlier identified and a reduction having regard to the financial circumstances of the defendant, an appropriate penalty with regard to the offence as charged to be a fine of $65,000. The prosecutor should have a moiety of the fine. 116 I make the following orders: 1. The defendant is fined an amount of $65,000 with a moiety thereof to the prosecutor;