Inspector Louise May v McDonald's Australia Limited - [2002] NSWIRComm 179 - NSWIRComm 1994 case summary — Zoe

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Inspector Louise May v McDonald's Australia Limited

[2002] NSWIRComm 179

Industrial Relations Commission (NSW)|1994-05-20|Before: Kavanagh J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1994-05-20

Before

Kavanagh J

Source

Original judgment source is linked above.

Judgment (72 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Louise May v McDonald's Australia Limited [2002] NSWIRComm 179 PROSECUTION: PARTIES : Inspector Louise May DEFENDANT: McDonald's Australia Limited FILE NUMBER: IRC2256 of 2000 CORAM: Kavanagh J CATCHWORDS : s15(1) prosecution of the Occupational Health and Safety Act 1983 for unsafe system of work - Plea of guilty entered - Prior to breach, Ronald McDonald Road Show operated with truck owned by McDonald's but the production of show operated by another company - McDonald's conducted a safety audit and re-assessment of safe work methods followed for each task performed by its employees but missed identifying defendant's responsibility for the Ronald McDonald's Road Show - McDonald's begins to directly operate show but after the safety audit of the defendant was completed - Third parties contribution relevant only to assist in context of culpability of defendant but for the offence pleaded - When assessing the nature and quality of an offence, the court must assess the offence as particularised and the risk that offence provided to the health and safety of its employee - Corporate character, reputation and industrial record of company considered - Penalty imposed - costs LEGISLATION CITED : Occupational Health and Safety Act 1983 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 CASES CITED : Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Inspector Mansell v Orica Australia Pty Limited [2002] NSWIRComm 155 Haynes v James Glass & Aluminium Pty Limited (unreported, CT772-775 of 1991, 20 May 1994) Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64 Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Cameron v The Queen [2002] HCA 6 HEARING DATES: 05/09/2002 DATE OF JUDGMENT: 08/05/2002

[9]

Acquisition of the Ronald McDonald show truck 6. In or about May 1993, it was agreed between McDonald's and DDB Needham (which was responsible for managing the Ronald McDonald shows prior to May 1997) that there was a need to acquire a new Ronald McDonald show truck for New South Wales to replace the existing Ronald McDonald show truck (the "existing truck"). 7. McDonald's engaged a logistics consultant, AG Mearns & Associates, to provide advice to it in relation to the acquisition, design and construction of an appropriate truck for the purpose of being used for the mobile Ronald McDonald shows in addition to the advice being provided to it by DDB Needham. 8. At or about that time AG Mearns & Associates, after consulting with relevant parties, including DDB Needham and McDonald's, provided DDB Needham and McDonald's with a number of quotes for a cab and chassis that it considered suitable for the purpose sought by DDB Needham and McDonald's. 9. On the basis of this advice, McDonald's purchased a Mitsubishi Canter cab and chassis with registration SRW- 420 for the purpose of having it converted into a Ronald McDonald show truck for New South Wales. 10. Therefore, at all material times McDonald's was the owner of a Mitsubishi Canter cab and chassis with a registration SRW-420 (the "new truck"). 11. Whilst purchasing the cab & chassis, McDonald's also engaged AG Mearns & Associates in consultation with DDB Needham to make inquiries of various entities engaged in designing and constructing truck bodies with a view to recommending a designer and manufacturer of the truck body for the new truck to McDonald's. 12. One of these entities was Thermatruck Pty Ltd ("Thermatruck"). 13. Thermatruck had substantial experience in the design and construction of truck bodies. DDB Needham therefore engaged Thermatruck, on behalf of McDonald's, to design and manufacture the body (and therefore stage) for the new truck. As McDonald's was not at that time involved in the day to day management of the Ronald McDonald shows (such being managed by DDB Needham at that time), McDonald's did not give AG Mearns & Associates any specific instructions on what the stage needed to look like save to indicate in conjunction with DDB Needham that McDonald's sought replication of the existing truck. 14. Thermatruck was engaged to replicate and construct the entire back section on the new truck including the stage section. Thermatruck was not provided by DDB Needham or McDonald's with any specifications for this construction but was required to replicate the existing truck. 15. To assist Thermatruck in replicating the existing truck for the purposes of the construction of the new truck, AG Mearns & Associates, DDB Needham and McDonald's made arrangements for representatives of Thermatruck to inspect the existing truck and consult with the employees of DDB Needham who operated the existing truck. 16. Some of the principal requirements for the body of the new truck were to incorporate a stage for performances, to house all backstage materials, equipment including sound and lighting control equipment and to transport all the hardware required for the performances. 17. The panel on the driver's side of the new truck was to be constructed so that it could be transformed into a stage (similar to the existing truck). It was secured to the body by four (4) hinge joints along the base edge with two (2) large lifting points on the interior of the panel towards the top corners. Each of the two (2) large lifting points were connected to a dedicated winch housed in the back of the truck for the purpose of lifting and lowering the stage. Each of the winches used a wire rope which was designed to connect to its respective lifting point with a hook which had a closure on it to prevent it coming undone accidentally. 18. In becoming the stage for performing the mobile Ronald McDonald show, the stage was lowered into the horizontal position using the winches connected to the stage utilising the large lifting points and the wire ropes. When the stage was lowered almost to the horizontal, legs were then installed to support the stage and the hooks (attached to the wire ropes) were disconnected from the large lifting points. 19. The truck entered service with DDB Needham, on behalf of McDonald's in or about late 1993 or early 1994.

[12]

Incident At North Goulburn Franchise - 23 May 1998 27. On 23 May 1998, Mr Bicer drove the new truck to McDonald's North Goulburn franchise restaurant. 28. Upon arriving at the restaurant Mr Bicer was met by, amongst others, Ms Dimech, Mr Wood (the performer of the Ronald McDonald character), Ms Cathy Anderson (McDonald's Area Marketing Manager) and Mr Andrew Dudley (the Goulburn franchise restaurant manager). 29. McDonald's employees consulted with Mr Dudley about the best location for the new truck to be parked for the purposes of setting the new truck up for the show. It was decided that an area in the restaurant's car park was the most suitable for this purpose. 30. Ms Anderson and Mr Wood then left the restaurant to attend at the Goulburn Base hospital for Ronald McDonald to do an appearance for the children in the hospital. 31. After the truck was unloaded, Ms Dimech and Mr Bicer began the process of lowering the stage. During this process, Mr Bicer unlocked the latch holding the stage vertical to the side of the truck. When Mr Bicer did so, the stage fell unrestrained onto Mr Bicer striking him on the head and neck. 32. After the incident, the stage was lifted off Mr Bicer and he was provided with immediate first aid attention by St Johns ambulance staff who were at the restaurant setting up a display. 33. Mr Bicer was taken by ambulance to Goulburn Hospital where he was clinically examined and x-rays were taken. It was noted that Mr Bicer had a serious spinal cord injury. A diagnosis of a dislocated right shoulder was also made. After a period of 4 to 5 hours Mr Bicer was transferred by helicopter to Prince of Wales Hospital in Sydney for immediate treatment of his fractured spine and spinal cord injury. He was then transferred to the spinal unit a Prince Henry Hospital on 8 July 1998 for ongoing rehabilitation. Mr Bicer was discharged from the spinal unit in approximately October 1998. 34. Mr Bicer suffered a fracture/dislocation of his T11/T12 vertebrae resulting in permanent T12 paraplegia. 35. On the date of the incident Mr Bicer was aged 22 years. 36. A medical examination of Mr Bicer by Associate Professor Oakeshott, Rehabilitation Medicine Consultant, on 2 October 1998 revealed the following: (a) Mr Bicer had no voluntary movement in either leg. (b) Mr Bicer had lost all skin sensation from just below his umbilicus and in both legs. (c) Mr Bicer had lost sensation and all voluntary control of his bladder and bowel. (d) Mr Bicer had no significant involuntary muscle contractions in his paralysed muscles. (e) All activities of Mr Bicer had to be performed from a wheelchair.

[25]

13 Evidence revealed modifications to the relevant truck were undertaken by a company, DDB Needham in 1993-94 in association with designers A.G. Mearns and Associates and Thermatruck. In the allegation of a failure to provide safe plant, there was some criticism of the design adopted for the attachment of the stage to the side of the truck. The evidence suggested the curtain eyelets attached to the edges of the stage were confused with the parts to which the winch lines were to be attached in order to raise the stage to the side of the truck and to secure it in position. The particulars supplied by the prosecution to the defendant in relation to the maintenance of the truck stressed the allegation the winches which controlled the lowering and raising of the stage "did not possess limit switches, brakes nor markings on the operating switch nor did the winches possess any means of access to the operation of the winches." It was alleged that the defendant failed to maintain the winches and the wire ropes attached to the winches. A further allegation as enunciated in the particulars to the summons, was the defendant failed to provide such information, instruction and training to Mr Bicer as was necessary to ensure his health and safety at work. SUBMISSIONS 14 The defendant submitted, as to the objective seriousness of the offence, the Commission in Court Session, in its consideration should reflect on the hierarchy of causes which contributed to the incident. To support this submission it cross-examined Mr Ng, the prosecution's expert witness, and summarised his view by putting into a hierarchical order of importance the factors Mr Ng identified as having a causal connection to the incident. Mr Harmer submitted the Commission in Court Session would conclude the majority of causes/controls including the two most fundamental causes identified by the expert witness had not been particularised as being the responsibility of the defendant nor were they relied upon by the Prosecutor.

[35]

25 To summarise, the defendant submits the Commission in Court Session must accept the list of causes of the incident as identified in hierarchal order by Mr Ng all of which were not particularised against the defendant. It was submitted in the context of the hierarchy of causes identified as contributing to the breach, the Commission in Court Session must assess only the particularised risks for which the defendant had sole responsibility in its assessment of the gravity of the breach. The responsibility of the defendant, it was therefore submitted, is limited. In the hierarchy of causes the acts for which the defendant had direct responsibility were identified at the lower level of responsibility for the incident and the Commission in Court Session should view the nature and gravity of the offence in this context. Consideration 26 In consideration of penalty the Commission in Court Session must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' . . . The Full Bench notes (at 476): . . . the proper approach is to first consider the gravity of the offence viewed objectively. And also (at 476): In the case of an offence under s15(1) of the OH & S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant; see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. 27 In WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284, Walton J, Vice-President addressed the duties cast by the Occupational Health and Safety Act on employers. In considering a submission a defendant should be afforded some leniency due to the fact that more than one person contributed to the relevant risk, his Honour held [61]: . . . when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk : Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99. (emphasis added)

[43]

34 However, the degree of the foreseeability is also a factor in assessing the level of culpability of the defendant. Some facts become relevant to this element of the offence in the Commission in Court Session's consideration as to the gravity of the offence. The show had been on the road for 18 years without incident. The relevant truck operated in the same configuration it was in at the time of the incident since 1993/1994, without incident. Ms Dimech had been with the operation of the Road Show for one year. There was no record placed before me of any prior difficulties in the operation although, the Agreed Statement of Facts at paragraph 26 provides some concern, not elucidated in any way in evidence. It refers to the packing up of the stage the weekend before: 26. The stage was lowered and raised on that day without incident save for some apparent slight difficulty experienced by Mr Bicer and Ms Dimech in re-latching the stage in the upright position. 35 Further, relevant to whether there was an element of foreseeability to this incident is the evidence of Ms Berney. The evidence revealed in 1996 McDonalds significantly re-examined its approach to occupational health and safety following a prior prosecution for a breach of the Occupational Health and Safety Act 1983. As Ms Berney admitted, in the audit of the company carried out in 1996, the operation of the McDonalds truck was not picked up. She affirms: If we had been aware that we had owned and operated the trucks, our approach to them would have been quite different. 36 Initially in its review of the work methods in place in its operations, the defendant examined procedures in place in its restaurant operations. Unfortunately, the Ronald McDonald Show procedures were not audited because, for 18 years prior to May 1997, the shows had been independently conducted by DDB Needham. McDonalds always owned the truck but it was independently operated. After May 1997 there was a variation to the arrangement and the show was directly operated by McDonald. The defendant acknowledges this responsibility was not identified. The second particular of the breach relied upon by the prosecutor relates to a failure to inform, instruct and train an employee as to safe working. It is agreed the employee was supervised. Mr Birch, the former driver, had been with the show for 14 years. He resigned in April 1998, one year after he was transferred to become an employee of McDonalds. The injured employee was then hired to take Mr Birch's place as the driver/assistant. Ms Dimech, over one weekend, trained Mr Bicer on-the-job. I do not accept this was sufficient training.

[63]

56 Consideration must be given when assessing penalty to elements of general and specific deterrence to compel attention to safe working. As was held in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]) the Commission in Court Session should take into account 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, WorkCover Authority (NSW) (Inspector Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in a consideration of breaches under the Occupational Health and Safety Act , 1983 by Hungerford J who stated: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that 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. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.

Inspector Louise May v McDonald's Australia Limited

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