Inspector Louise May v McDonald's Australia Limited

Prosecutor: Mr D.B. O'Neil, of counsel Solicitor: Mr G. Phillips LEGAL REPRESENTATIVES: Carroll & O'Dea Defendant: Mr M. Harmer, solicitor Harmers Workplace Lawyers

JUDGMENT: - 28 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Monday 5 August 2002 IRC2256 of 2000 INSPECTOR LOUISE MAY v McDONALD'S AUSTRALIA LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983

JUDGMENT [2002] NSWIRComm 179 1 This Prosecution is brought by Inspector Louise May of the WorkCover Authority of New South Wales under the provisions of s15(1) of the Occupational Health and Safety Act 1983. The summons reads: The defendant . . . on 23 May 1998 did fail to ensure the health, safety and welfare at work of all of its employees and, in particular, Mr Veli Bicer, in that the Defendant failed to provide or maintain plant and systems of work that were safe and with out risk to health and further, the Defendant did fail to provide such information, instruction and training as may be necessary to ensure the health and safety at work of the Defendant's employees and, in particular, Mr Bicer.

2 Two relevant particulars to the breach were relied on by the Prosecution: . . . the Defendant failed to provide and maintain plant and systems of work; and further the Defendant failed to provide such information, instruction and training to Mr Bicer such as was necessary to ensure the health and safety at work of the Defendant's employees.

3 The defendant pleaded guilty to the breach of the Act.

4 A comprehensive Agreed Statement of Facts was tendered: 3. At all material times McDonald's was an employer in New South Wales and throughout Australia and in particular the employer of Mr Veli Bicer. 4. At all material times McDonald's conducted Ronald McDonald shows on location, usually at McDonald's franchise restaurant sites. 5. At all material times McDonald's employees were required to set up the stage for the travelling Ronald McDonald show in the car park at McDonald's North Goulburn franchise restaurant located at the Corner of the Hume Highway and Common Street, Goulburn, in the State of New South Wales, ("the site").

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.

Organisation of North Goulburn Ronald McDonald Show & Engagement of Mr Bicer 20. In early 1998, Mr David Sutherland, a Director of Kibo Pty Limited ("Kibo") the operator of McDonald's North Goulburn franchise restaurant arranged with McDonald's for it to supply the Ronald McDonald show truck for the purposes of providing the show at the North Goulburn franchise restaurant on Saturday, 23 May 1998. 21. By letter of offer dated 16 May, 1998, McDonald's offered employment to Mr Bicer on a casual basis as a truck driver. Specifically, the contract provided that Mr Bicer would be required to work on weekends and sometimes weeknights as dictated by the Ronald McDonald appearance schedule. The Ronald McDonald Manual dated 8 November, 1996 confirms that it is the responsibility of the truck driver with the help of two (2) McDonald's crew helpers to set up the show. 22. Prior to and including 23 May 1998, McDonald's had in place maintenance policy in respect of the truck. This policy did not include any instruction in respect of the safe method in which the new truck was to be unpacked and the stage was to be set up. 23. Mr Bicer performed duties for McDonald's on 16 May and 23 May, 1998 pursuant to the contract of employment. Mr Bicer's supervisor was a Ms Simone Dimech, a person in the employ of McDonald's in the position of Ronald McDonald Manager.

Performance at West Ryde - 16 May 1998 24. Mr Bicer was first required to drive and set up the truck on 16 May 1998 when the truck was required to be set up at McDonald's restaurant at West Ryde. 25. Mr Bicer and Ms Dimech jointly were involved in setting the truck up at West Ryde, with Mr Bicer being under the supervision and training of Ms Dimech. During the setting up and packing up of the truck on 16 May 1998, Ms Dimech explained the process to be followed by Mr Bicer in the future setting up the truck and carried out the majority of the tasks involved in the same herself with assistance from Mr Bicer. 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.

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.

This report also outlined the following likely future ongoing requirements for Mr Bicer: (a) Mr Bicer would require the presence of an attendant carer who can assist with tasks nominated by him for up to 10 hours per week up until the age of 40 and from 15-20 hours per week between the ages of 40 and 60. (b) Mr Bicer would require annual consultations with the medical specialists in spinal cord injury management to ensure no complications of his spinal cord injury has occurred. (c) Mr Bicer would require wheelchair accessible accommodation for any house in which he lives or any work place, including ramp access from outside the house. (d) Mr Bicer would require a small heated pool for use at home to maintain his cardio-vascular fitness and strength in the movement of his arms, particularly his shoulders, which were now vital for his mobility and transfers. (e) Mr Bicer would require an average of a least 2 consultations a year with a physiotherapist for the rest of his life to ensure that the joints of his legs are put through a full range of movement frequently.

Training of Mr Bicer 37. As at the time of the incident, Mr Bicer had not received any formal training from any person in the employ of or on behalf of McDonald's in relation to the safe operation of the truck, and, in particular, the lowering of the stage fixed to the driver's side of the truck. McDonald's had provided no written information or formal instruction to Mr Bicer regarding the safe operation of the body of the truck and, in particular, Mr Bicer had received no instructions as to the safe system of work to be employed with regards to the lowering of the stage.

The Ronald McDonald show truck 38. Further, it is alleged that the stage section of the truck was unsafe in that the winches which controlled the lowering and raising of the stage did not possess limit switches, brakes nor markings on the operating switch. Further, it is alleged that McDonald's failed to maintain the wire ropes attached to the winches.

Incident Notification by McDonald's 39 A verbal notification of the accident was provided to WorkCover by McDonald's National Workplace Safety Manager, Ms Natalie Berney on 25 May 1998 being the first working day after the incident. 40. This was followed by a formal WorkCover Accident Report dated 28 May 1998, McDonald's.

Investigations conducted by WorkCover 41. On 25 March 1999 Inspector Ken Vassel conducted a factual inspection of the car park at the site. The inspection was in the company of one of the employees of Kibo who was present at the time of the incident. Upon carrying out the factual inspection the Inspector took a series of 4 photographs of the scene. 42. The WorkCover Authority took custody of the new truck on 17 July 1999. The new truck was taken to the Test Safe premises of WorkCover located at Londonderry. On 9 August 1999 at Londonderry, a re-enactment of the setting up of the stage took place, along with a further factual inspection. Photographs were also taken of the vehicle and the view of the stage. 43. Test Safe Australia produced a report dated 1 September 1999 in relation to the accident after the inspection and recreation of the lowering of the stage. 44. A Certificate pursuant to Section 46 of the Road Transport (General) Act 1999 (NSW) obtained from the Roads and Traffic Authority dated 22 May 2000 confirmed that McDonald's was the owner of the truck on 23 May 1998. 45. On 30 July 1999 an Inspector of the WorkCover Authority interviewed Ms Natalie Berney, The National Workplace Safety Manager of McDonald's who was legally authorised to speak on behalf of McDonald's. Ms Berney confirmed that: (a) Mr Bicer was an employee of McDonald's at the time of the incident and his duties involved the setting up of the stage attached to the truck. (b) The day of the incident was only the second weekend that Mr Bicer had worked for McDonald's on the Ronald McDonald show truck. (c) Ms Simone Dimech, the Ronald McDonald Manager of McDonald's, was the supervisor of Mr Bicer. (d) Thermatruck was engaged to design and install the entire back section on the truck and that McDonald's had bought a cabin and chassis which was provided to Thermatruck who provided the complete structure on the chassis.

5 Mr D.B. O'Neil, of counsel, appeared for the prosecutor and Mr M. Harmer, solicitor, appeared for the defendant.

6 The prosecution relied upon a report of Mr David W Ng issued by Test Safe Australia, Factual Inspection Reports by two different WorkCover Authority Inspectors and photographs of the site taken by both inspectors at different times.

7 The defendant cross-examined Mr Ng and through him tendered a document, which document was identified as a hierarchical list of causes leading to the collapse of the stage. The defendant also relied upon a request for further and better particulars as provided by the WorkCover Authority, and a statement of the injured employee, Mr Bicer, as given to the WorkCover Authority. The defendant further called a Ms Natalie Patricia Jane Berney, Vice President, National Development Director of McDonalds Australia Limited. Ms Berney swore an affidavit, the contents of which were significant. In the context of her evidence it is also noted she has held the position with the defendant company of National Work Place Safety Manager. She tendered the McDonald company's policies and procedures for safe working. They were contained in four volumes of documents which held 46 annexures. The volumes include all the occupational health and safety policies now adopted by McDonalds, all training manuals and procedural manuals, audit reports and safety maps used by the company. The documents reflect a rigorous re-examination of a company's health and safety plan updated continuously from 1996. 8 The charge under s15 relates to the operation of the Ronald McDonald Roadshow truck. The s15 breach relates to a failure of the defendant to provide a safely secured stage on the side of the truck; a failure to safely maintain particular mechanisms for the attachment of the stage to the truck and a failure to properly train the driver of the truck who as part of his duties was required to lower the stage.

9 Mr Bicer was the driver of the truck used by McDonalds to present their Ronald McDonald Roadshow at the McDonalds outlets and at Children's Centres, especially Children's Hospitals. Mr Bicer accepted the job as driver but the job description also required him to set up the stage for the presentation of the show. He first worked for the defendant at the Ronald McDonald Magical Circus Show presentation at West Ryde the week before the incident on 16 May 1998. His duties were outlined to him by the organiser of the show Ms Simone Dimech, who at this time was also an employee of McDonalds. Ms Dimech, on the first weekend Mr Bicer worked, demonstrated the lowering and raising of the stage attached to the side of the truck. There was no other formal training received by him other than this on-the-job training.

10 The truck was designed to carry the stage to be used by the entertainers. While the vehicle was on the road the stage was attached to the driver's side of the truck. It was secured to the body of the truck by four hinged joints along the base edge with two lifting points on the interior of the panel towards the top. The stage was then lifted up by a dedicated winch housed in the back of the truck. The panels could be lowered into the horizontal position by application of the winches. Legs were then installed to support the stage.

11 On his second weekend's work, Mr Bicer drove the truck to the Goulburn McDonalds on 23 May 1998. He parked the truck in the McDonalds' car park. With him was Ms Dimech. On arrival they joined other employees of the McDonald's franchise at Goulburn. In order to lower the stage, Mr Bicer, at the direction of Ms Dimech, obtained a stool from the rear of the truck. As well as the winch operation, which was intended to secure the stage to the side of the truck, the stage was latched to the side of the truck with a locking device found in about the middle of the stage. Mr Bicer, it was thought by the parties, reached up and undid the latch. The stage immediately fell forward striking Mr Bicer on his head/neck.

12 Mr Bicer was seriously injured. He is now a permanent T12 paraplegic.

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.

15 The defendant through the expert proffered to the Commission in Court Session that the proximate causes are listed in descending order of importance. 1. . . . 2. The proximity of the black eyelets (which connected the curtains to the side of the stage) to the correct attachment points so that the cables could be accidentally connected to the wrong clip. 3. The lack of a permanent attachment between the winch wire ropes and the lifting points of the stage. 4. The lack of a limit switch to prevent the winch from being overwound. 5. Failure of the employer to provide an operating manual for the truck. 6. Failure of the manufacturer to provide an operating manual for the truck. 7. The absence of periodic safety inspections of the truck by the employer. 8. The absence of warning signs near the eyelets attaching the curtains to the stage and the correct attachment points for the wires leading to the winching mechanism. 9. The failure by the employer to train Mr Bicer in the set up of the stage. 10. The failure of the employer to adequately train the employee or employees who incorrectly attached the cable and then operated the winch in such a manner that the eyelets which attached the curtains to the st age were weakened. The defendant submits its plea of guilty acknowledges its specific responsibility for cause Nos 4 and 9.

16 The defendant submitted the factors identified by Mr Ng in order of importance are relevant to the Commission in Court Session's consideration as to the nature and gravity of the breach. The defendant submits the most important factor that caused the injury to Mr Bicer was the positioning of the latch to the stage on the side of the truck so that its operation required a person to stand underneath the stage without a means of escape whilst unlocking the stage. As one of the most fundamental rules of design is that human intervention must be minimised, the defendant submits the design problems identified are not ones for which the defendant should be responsible but rather those to whom it gave the design work.

17 The defendant submits in order to assess the nature and quality of this breach, the court will consider, in context, the totality of contributions to the particularised risk to safety, then determine the respective levels of contribution for the various design faults in the body of the truck and in the mechanism on the truck and accept as particularised the responsibility of the defendant to that risk which must be de-minimus. 18 The defendant as to the gravity of the offence submits as the prosecution in particular only relies upon the defendant's failure to provide a limit switch on the winch (see No.4) and its failure to train Mr Bicer (see No. 9) its contribution to the incident, in the context of the incident itself, must be held by this Commission in Court Session to be minimal.

19 The defendant summarises this submission in the following terms: The incident was merely the catalyst which brought attention to the plant, systems and training presenting a risk to safety. The defendant acknowledges the prosecution relates to the risk to safety and not to the specific causes of the incident but submits the causes of the incident provide an important context for the Commission in Court Session's assessment of penalty.

20 The defendant submits further, the factors identified as contributing to the incident listed are not only proximate causes of the incident but also represent a hierarchy of controls of the risk particularised at the core of the offence (i.e. the danger of the stage falling and striking employees). The defendant asserts in respect to the fundamental design deficiencies at the core of the relevant risk, a heavy onus was borne by the original and subsequent designers and manufacturers of the truck. Such a submission the defendant argues must lead the Commission in Court Session to conclude the majority of causes/controls (including the two most fundamental causes) identified by the expert evidence were not particularised as being the responsibility of the defendant.

21 The defendant as to the failure to supply safe plant submits the contributions to the relevant risk as particularised in this prosecution are not capable, either on their own or in combination with each other, of triggering the collapse of the stage. The deficiencies in plant particularised against it the defendant submits must be assessed in the context that the particularised deficiencies in the winching mechanism (lack of limit switches, brakes, markings on the operating switch and means of access to the operation of the winches) were not capable of causing harm to the lifting process if the wire ropes were connected to the correct connection points on the stage. In terms of the detected deficiencies in maintenance of the winch mechanism and wire ropes, the prosecution, the defendant submits, does not allege the winch mechanisms and wire ropes failed (as opposed to the possibility that the curtain eyelets failed when incorrectly utilised as attachment hooks). The winching mechanism and wire ropes were not in immediate prospect of failing (in that the limited damage detected was not near the thimble or clipping mechanism; would not be subject to the high tension of any over winding of the winch; and was not likely to fail despite its condition in the circumstances).

22 In respect of the particularised failure to train Mr Bicer, the defendant submits Mr Bicer on 16 May 1998 worked under the supervision and on-the-job training of Ms Dimech in the setting up of the stage (see Agreed Statement of Facts at paragraphs 25 to 26). Mr Bicer was not however involved in the packing up of the stage on 16 May 1998. The defendant submits the packing up of the stage on 16 May 1998 was, on the evidence available, undertaken by Ms Dimech directly, or at the very least, persons other than Mr Bicer who were under Ms Dimech's supervision. The defendant then submits Ms Dimech had received on-the-job training in relation to the proper operation of the stage, including the correct connection of the attachment hooks, over a period of approximately one year. Ms Dimech trained under the supervision of Mr Birch, an employee with extensive experience in the operation of the stage. The stage was not interfered with between the performance on 16 May and 23 May 1998 (based on the evidence available). In such circumstances, the defendant submits the Commission in Court Session would conclude the particularised failure in training Mr Bicer, who was subject to supervision and training on-the-job from Ms Dimech on 16 and 23 May 1998, was not a factor, on the available evidence, in the collapse of the stage on 23 May 1998.

23 The defendant submitted Ms Dimech directly supervised Mr Bicer in "on-the-job" training. Further there was no evidence from the prosecution to indicate any fault in Mr Bicer's training was a contributing factor to the collapse of the stage. The defendant submitted the failure to provide information, training and instruction was particularised as a failure specific to Mr Bicer and not in respect of other employees.

24 The Commission in Court Session must therefore conclude, the defendant submits, the breach arose due to a failing by an experienced and trained employee, namely, Ms Dimech, and the fact that a trained employee commits an oversight merely serves to emphasise the importance in the hierarchy of risk controls of the design factors.

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)

28 This view was relied on by the defendant in pressing the submissions as to the Commission in Court Session's obligation to determine the defendant's contribution to the relevant risk. Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 [at 42-43] considered the proper approach to the sentencing process was: 42 . . . the determination of penalty must reflect the nature and quality of the particular offence so as to compel attention to occupational health and safety risks in order to ensure persons are not exposed to such risks at their workplaces but not at a level which would be oppressively high: . . . I would only add, however, the observation of the Full Bench in Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at p 475 that, although the primary factor to look at in fixing penalty is the objective seriousness of the offence, subjective factors peculiar to the defendant should properly be taken into account in mitigation; . . . and should not produce a sentence which fails to adequately reflect the seriousness thereof: . . .

43 What I think flows from those settled principles as to the sentencing process is that the penalty is to be determined by reference to the offence . . . .

29 Mr Harmer's submissions are to the effect the Commission in Court Session should consider in a relative or proportionate sense the contribution of other parties to the incident. I find any approach focused more on the occurrence of the collapse of the side of the stage causing a risk to safety rather than with the "offence" charged as set out in the particulars is, as was endorsed by Hungerford J in Consolidated Constructions [at 43]: . . . distractive in the sentencing process as to the defendant's failures.

30 It is the culpability of the defendant for the offence as pleaded which must be considered. The Commission in Court Session is not required in its consideration to make an apportionment as to liability for the incident. Mr Harmer's submission invites the court to do so. I reject this submission.

31 On the admitted facts the stage was not safely secured and Mr Bicer was not properly informed, instructed or trained to ensure safe working. The stage collapsed but that is not the occurrence with which the defendant is charged. The charge for which the defendant is brought before the Commission in Court Session and to which it pleads guilty is "the offence" the Court must address. In Consolidated Constructions it was re-iterated [at 43]: . . . the penalty is fixed for the offence found to have been proven. It is, therefore, to the offence itself to which attention is to be directed and not, . . ., the occurrence of the accident and the contribution of other persons for what occurred. (emphasis added) While the occurrence of the incident and the contribution of other identities for what occurred are not to be used to reduce any overall penalty they can be used as factors to assist the Commission in Court Session to determine the culpability of the defendant as charged. This court is, as was Hungerford J, assisted by the words of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 (at 257): Whilst . . . it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in . . . C I & D Engineering . . . . The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that (the) failure gave rise to a risk to health, safety or welfare.

32 The essential nature of the present offence is the failure of the defendant to recognise the risk to the safety of its employee who was required to unlatch the stage from the side of the truck. That failure as pleaded was a failure to provide safe plant, namely, the truck with a stage attached; the failure to properly maintain that plant and a failure to train. The agreed facts revealed other companies designed the moveable stage and the plant used for the attachment of the stage to the side of the truck. The truck was always, however, owned by McDonalds, the defendant. The truck carrying the stage, in the design configuration at the time of the incident, had been on the road since 1994. It had operated originally under the auspices of DDB Needham "on behalf of McDonalds". Evidence revealed the Ronald McDonald Show became fully operational by McDonald's in May 1997. The defendant in pleading guilty conceded the winches which controlled the lowering and raising of the stage did not possess limit switches, brakes nor markings on the operating switch. The defendant also pleaded guilty to a failure to properly maintain the wire ropes attached to the winches. Mr Bicer had only one weekend as a casual on-the-job where he had received no formal instruction or written information regarding the safe operation of the plant particularly with regard to the lowering of the stage.

33 Before 1997 and certainly once the defendant in 1997 took full control of the Ronald McDonald Show it had the primary and direct responsibility for the safety of the employees it employed to operate the show. This is a strict obligation under the Act. The failure to even be aware of its responsibility for this truck and the associated failure to maintain the equipment; to secure the stage; to have an employee properly trained to perform this task through a fully devised safe work method for the lowering of the stage, culminated in the relevant risk to safety exposed by this breach of the Act. There had been no risk assessment of this task nor proper work method devised for the performance of the task.

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.

37 Further, I do not accept the submission of the respondent the Commission in Court Session should infer Ms Dimech made the error in attaching the wire lines to the curtain eyelets. The submission of the defendant that the Commission in Court Session should find the incident arose at least in part due to a failing by an experienced and trained employee, namely Ms Dimech, is not a relevant consideration. As the Full Bench commented in Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [15] when addressing the submission the conduct of an employee effectively removed or minimised the liability of a defendant: . . . This was wrong in principle. Section 15 of the Occupational Health and Safety Act 1983 requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing.

38 Further, in Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57, Walton J, Vice-President, in the context of a circumstance where there was evidence of "on the job training", considered the obligation to train an employee saying [at 57]: 57. . . . 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. . . . 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 . . .

39 While there was a manual prepared in 1996, which manual confirmed the truck driver with two crew members had the responsibility to set up the show, there was no evidence Mr Bicer had access to any detailed training programme nor was there any evidence placed before the Commission in Court Session of the nature and detail of the alleged "on-the-job" training by Ms Dimech.

40 The Commission in Court Session cannot accept and must reject the defendant's submission: The incident was merely the catalyst which brought attention to the plant, systems and training presenting a risk to safety. 41 The defendant in the context of its submissions would limit the Commission in Court Session's view of the gravity of the offence to a measurement of the risks in the system of work and to quantify contribution in a hierarchical order. Rather, the Commission in Court Session must determine the "nature and quality" that is, gravity of the offence before it, by reference to the relevant risk as pleaded against the defendant. The culpability of the defendant must be assessed in this circumstance created by the offence.

42 Walton J, Vice-President recently noted [at 72] in Inspector Mansell v Orica Australia Pty Limited [2002] NSWIRComm 155 (published 12 July 2002): 71 . . . it is well settled that the primary factor for consideration when determining penalty in sentencing proceedings under the Act is the objective seriousness of the offence: . . .

72 . . . assessment may assist in the determination of the level of culpability of the defendant for the offence charged: . . . However, it is wrong, in my view, to make that evaluation for the purpose of apportioning the overall penalty which may be said to be appropriate in the circumstances of a particular incident giving rise to prosecutions under the Act: Consolidated Constructions at [46]. When determining an appropriate penalty for a defendant in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is primarily important to assess the nature and contribution of the defendant to the relevant risk: . . . .

43 A number of factors are indicative of the objective seriousness of the subject offence, that is, the gravity of the offence. The system of work for the unpacking of a stage secured to the side of a truck was unsafe. For whatever reason the stage was not properly secured. In the performance of the simple task of unlatching the stage the employee suffered a blow to the head. The mechanisms as pleaded to secure the stage failed. They had not been properly maintained. It was the responsibility of this employer to ensure in the unlatching of the stage, Mr Bicer suffered no risk to his safety. The defendant as the employer has an obligation and was responsible for ensuring the mechanisms were properly designed and maintained to provide no risk to the safety of this employee. 44 From an examination of the Agreed Statement of Facts and the content of the affidavit of Ms Berney, the Commission in Court Session is satisfied the deficiencies in the plant particularised, namely those related to switches, brakes, markings, access and the lack of maintenance, together reveal an unsafe system of work which led not only to a risk to safety but to injury. Serious consequences flowed from the performance of this unsafe system of work. While the gravity of the consequences actually resulting from this breach, that is, the terrible injury of paraplegia, does not of itself dictate the amount of penalty, it is indicative of the gravity of the potential risk which flowed from the breach (see Tyler v Sydney Electricity (1993) 47 IR 1 at 5). As Wright J, President said in Ferguson v Nelmac (1992) 92 IR 188 (at 204): . . . where a fatal injury has occurred, that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious.

45 I find the injury in this case is reflective of an offence, the nature and quality of which is most serious. The circumstance reveals McDonalds had had full control of the show and truck since 1997 but did not know it. I accept the circumstances do not reveal there was a reasonable foreseeable risk to safety the existence of which the company was fully aware (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700).

46 In an assessment of the gravity of this offence, notwithstanding the evidence of a hierarchical assessment of the cause/control of this incident, I find the defendant company as the employer failed to provide a safe system of work and the associated risk to the safety of its employees was significant. The failure by this defendant as particularised gave rise to a risk to the safety of its employee, Mr Bicer. Therefore the nature and quality of this offence, that is the gravity of the offence, I find most serious.

47 There were a number of subjective considerations placed before the Commission in Court Session in its consideration as to penalty. 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) the Full Bench stated (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited (at 474), with approval, the passage of the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Limited (unreported, CT772-775 of 1991, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce."

48 Ms Berney began her evidence by expressing the company's contrition for the incident and her personal concern for the injured worker, Mr Bicer. She revealed company employees visited Mr Bicer on a number of occasions and a rehabilitation programme was put in place. The prosecution was able to confirm that appropriate assistance has been provided to Mr Bicer for the terrible consequences of this breach.

49 Ms Berney revealed from the day of the incident the Ronald McDonald show no longer travels with a specifically designed truck providing the stage. The truck was immediately taken off the road. Employees who conduct the show now use facilities available at the chosen sites. In the circumstances I find this was an appropriate decision to have been taken.

50 The corporate character/reputation of a company is relevant in a consideration as to mitigation of penalty (see full discussion of the nature of character and reputation evidence in Melbourne v The Queen 198 CLR 1; WorkCover Authority of NSW (Insp Dubois) v Transfield Pty Limited (unreported, IRC6985 of 1999, 8 November 2000, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000] NSWIRComm15 (published 8 March 2001); WorkCover Authority of New South Wales (Inspector Farrell) v Forgacs Shipyard Pty Ltd [2000] NSWIRComm227 (published 12 October 2001); see also discussion referred to in WorkCover Authority of NSW (Insp Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92).

51 The defendant has operated in New South Wales for 27 years prior to 25 May 1998. It now employs 8000 direct employees at 112 geographical locations within the State. It employs over 15,000 persons around Australia. Collectively the defendant directs, through franchise operations, up to 55,000 employees nationally. These operations are open seven days per week for 18 to 24 hours per day. A vast majority of these employees are part time or casual.

52 McDonalds as a corporate citizen has proven it is committed to training its staff and that commitment is reflected in the 2001 Employer of the Year award from the Australian Retail Association. The defendant, I accept, has received many awards related to its training programs. The defendant operates eleven Ronald McDonald houses located throughout Australia which homes care for the families of children suffering serious life threatening illnesses. The defendant also operates the Ronald McDonald Charity House Trust to assist those children with serious life threatening illnesses in whatever way necessary. The defendant makes substantial contributions to child related units at various hospitals throughout Australia including the Sydney Children's Hospital. It provides approximately $5 million per year in sponsorship for educational, environmental, artistic and sporting programs.

53 The Commission in Court Session accepts, as a corporate citizen, the defendant company can be held in high regard. As it employs many of the youth of our State and gains much of its profits from the families in our State, it is both admirable and appropriate it directs its charitable energies towards children's causes. This cannot be anything but admired. However, once it has chosen to employ the State's youth as the foundation of its work force it has a particular responsibility to ensure safe working.

54 In Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64, Walton J, Vice President said [at 88]: . . . 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.

55 I accept after the 1996 breach of the Act, the defendant revised the safety policies and procedures in place. A rigorous training programme is now conducted by the defendant with all its employees. Tendered before me were the safety manuals providing the extensive steps taken by the corporation to ensure training materials are made available to each employee. Reference materials are now available to assist employees to identify hazards. The review required an assessment and replacement of much of the restaurant equipment. This step reveals the expenditure of significant monies to ensure safe working. The tendered safety manuals, policies and procedures satisfy the Commission in Court Session there is now in place not only a "systems" safety policy but a "behavioural" model layered on to the systems model. This is the ideal. In the systems model, the general safety standards are adopted and site specific work methods devised. The "behavioural" model empowers individual employees in the design and performance of the work method to identify risk and encourages employees to take the appropriate steps to minimise or eliminate any identified risk to safety at any time in the performance of the task. I am satisfied McDonalds now has in place policies and procedures to ensure safe working.

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.

57 I accept the specific elements of deterrence have been addressed by the defendant in its decision to take the truck off the road. As to general deterrence, the company persuades the Commission in Court Session, through its revised procedures, it has a full corporate commitment to safe working.

58 Throughout the history of the defendant's operation there are recorded two prior breaches of the Act, one of which is identified as a serious breach. Placed before me were the circumstances leading to a further prosecution. The decision related to penalty in that matter has been reserved by the Commission in Court Session. I accept the defendant's industrial record, in light of the size of its operation and the number of its employees, may be perceived as a good industrial record with a company employing so many young people in the fast food industry.

59 The maximum penalty for this breach applicable by virtue of the application of s51A of the Act given there have been prior convictions under the Act is therefore $825,000.

60 I further accept that the company comprehensively co-operated with the WorkCover Authority and provided it with assistance in their investigations.

61 The defendant submits, in mitigation as to penalty, it entered an early plea of guilty to the charge. In the guideline judgment of R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and (2000) 115 A Crim R 104, the Court of Criminal Appeal held the full benefit and discount for the utilitarian value of an early plea of guilty should be restricted to pleas entered at the earliest opportunity and should rarely be given after a matter has been set down for trial. In Cameron v The Queen [2002] HCA 6, the High Court however held when a defendant accepts responsibility for a crime and shows a willingness to facilitate the course of justice, the Court in the assessment of the value of such a circumstance must consider ". . . whether the plea was entered at the first reasonable opportunity". The effect of Cameron on the guideline judgment in Thomson was considered by the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142. The court held through a judgment of Spigelman CJ that the reasoning in Cameron was not applicable in New South Wales because the common law principles enunciated there have been modified by statute. It held s22 of the Crimes (Sentencing Procedure) Act 1999, renders it mandatory that a sentencing judge in New South Wales take into account both "the fact" of the plea of guilty and "when" it was made. The Chief Justice, for the court, held in Sharma the statutory reference to "the fact" of the plea, does not direct attention to the subjective intention of the person pleading guilty nor is the reference to "when" a plea is made. The guideline judgment of Thomson is therefore of full force and effect and must be followed.

62 The prosecutor supports the defendant's submission that the circumstances in which the plea was entered should be perceived by the Commission in Court Session as an early plea such as to attract the benefits of the utilitarian value of an early plea in accordance with the guidelines of Thomson as endorsed in Sharma. This prosecution was filed on 23 May 2000. The defendant entered a plea of guilty on 17 May 2001 almost a year later. The matter had been before the Commission in Court Session on eight prior occasions for mention. It is clear there were some negotiations between the prosecutor and the defendant as to the agreed facts. It is clear from the evidence there were other breaches of the Act under consideration for prosecution. While I accept the company had to consider its position after research related to matters of design and construction I do not believe these circumstances, where there was a lag of a year between the laying of the charge and the plea and eight appearances at mentions before the Court prior to the entering of the plea, are circumstances which should attract the full discount for the fact of the plea. However, the fact of the plea has some utilitarian value and I allow a discount of 15 per cent for the utilitarian value of the plea.

64 I take into account the gravity of the offence and the above relevant subjective features and I allow the 15% discount for the utilitarian value of the plea. The defendant is fined in the sum of $180,000 with a moiety to the WorkCover Authority.

65 There has been agreement between the parties as to the quantification of the costs in the sum of $10,000. I order the defendant to pay the prosecution's costs as agreed at $10,000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.