Inspector Low v Capral Aluminium Ltd - [2002] NSWIRComm 12 - NSWIRComm 1991 case summary — Zoe

NSWNSWIRComm

Inspector Low v Capral Aluminium Ltd

[2002] NSWIRComm 12

Industrial Relations Commission (NSW)|1991-07-22|Before: Boland J, Mahoney JA, Newman JJ, Hill J, Schmidt J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1991-07-22

Before

Boland J, Mahoney JA, Newman JJ, Hill J, Schmidt J

Source

Original judgment source is linked above.

Judgment (87 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Low v Capral Aluminium Ltd [2002] NSWIRComm 12 PROSECUTOR: Inspector Ian Low PARTIES : DEFENDANT: Capral Aluminium Ltd FILE NUMBER: IRC 4903 of 2000 CORAM: Boland J CATCHWORDS : Occupational health and safety - Prosecution under s16(1) of the Occupational Health and Safety Act - Electric shock - Interim convictions - Plea of guilty - Guilty verdict entered - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Camilleri's Stockfeeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources (NSW) (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 R v Boney (unreported, NSW Court of Criminal Appeal (Mahoney JA, Grove and Newman JJ), matter No. 60342 of 1991, 22 July 1991) CASES CITED : R v Hutchins (1957) 75 WN NSW 75 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 Veen v The Queen [No 2] (1988) 164 CLR 465 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Capral Aluminium Limited (1999) 90 IR 256 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd [No 2] (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Piggott) v Capral Aluminium Ltd (unreported, Hill J, 29 July 1998) WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of NSW [2000] NSWIRComm 179 WorkCover Authority of NSW (Inspector Piggot) v Capral Aluminium Limited (unreported, Schmidt J, matter No. IRC 2265 of 1997, 14 May 1998) HEARING DATES: 10/31/2001 DATE OF JUDGMENT: 02/11/2002

[23]

15 The agreed statement described the incident leading to the charge being laid against the defendant as follows: 44. On or about 7 October 1998 at 5.30am, Darren Potts removed the electrics in the Crane cabin to allow the Contractors to install the insulation. 45. When Darren Potts completed removing the electrics for the day on 7 October 1998 (ie: before7.30am), the eastern cabin of the Crane was stripped out. However, the ends of two red and black wires from a power point in the cabin were inappropriately left exposed. Darren Potts cut the ends to remove the exposed copper ends, however contrary to normal electrical procedures neither of the ends of those wires were taped or insulated, which Darren Potts, as a qualified electrician, knew was required. 46. Darren Potts left the main isolation switch and the auxiliary services switch in an open circuit position (ie: they were off). He placed an "Out of Service" tag on the main isolation switch. He did not leave a tag on the auxiliary services switch contrary to the requirements of Capral's Danger Tag, Out of Service Tag and Caution Tag Regulations. The effect of leaving the main isolation and auxiliary services switches in an open circuit position was to isolate the cabin of the Crane, so there was no electricity at all. 47. At approximately 8.30am Malcolm Brewer escorted the Contractors to the Crane. There was an Out of Service tag on the main isolation switch. Malcolm Brewer told the Contractors to each put a Danger Tag on the main isolation switch, which they did in accordance with proper procedure. The Contractors then commenced work on the Crane. 48. At the end of the shift, Malcolm Brewer told Darren Potts that the Contractors had finished and asked if he could remove the Out of Service tag and restore power. Darren Potts said that he could but if it was necessary to move the Crane, to do it from the west cabin and that there would be no access to auxiliary equipment. 49. On the morning of 8 October 1998, Malcolm Brewer again escorted the Contractors to the Crane to continue the insulation work in the east cabin. Keith Christopherson asked Malcolm Brewer to isolate the Crane. 50. The main isolation switch was on so Malcolm Brewer positioned the main isolation switch in an open circuit position (ie: turned it off). Malcolm Brewer was not aware that there were exposed electrical conductors in the Crane and did not get authorised Capral electrical personnel to isolate the wires. He did not replace the Out of Service tag on that switch, contrary to the Out of Service tag requirements. The Contractors then placed danger tags on the main isolation switch. The auxiliary services switch was not tagged and was in the closed circuit position (ie: turned on). 51. Later in the day, Ray McGuiness was working in the southeast corner of the cabin of the Crane and was placing a pop rivet into a hole in a sheet when he received a mild electric shock. Keith Christopherson was standing on a seat fitting a sheet to the ceiling and also received a mild electric shock. It is thought Keith Christopherson may have come into contact with Ray McGuiness and received a parallel shock. 52. The effect of the auxiliary services switch being in a closed circuit position (ie turned on) was that the electrical wires that had not been insulated the previous day were live despite the main isolation switch being in the open circuit position.

[44]

· Relevant criteria in the assessment of the nature and quality of an offence included: o Whether there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible; o The gravity or otherwise of the potential risk to safety following from the specific failure to implement safety measures which constituted the breach; and o The related likelihood that the breach would, or would not, lead to serious consequences. · Darren Potts contributed significantly to the breakdown in safety by failing to exercise with diligence the skills and learning of his trade; by failing to comply with national standards associated with the performance of his trade; and by further failing to comply with specific Capral procedures. · The deficiencies in Capral's attention to safety on 8 October 1998 are demonstrated by the reasonable and practicable steps that Capral was able to implement, with the benefit of hindsight, subsequent to the incident. · In relation to the nature and quality of the offence it was submitted that: o The primary layers of the measures in place to ensure safety were those that Potts departed from; o The steps subsequently introduced by Capral to enhance safety, whilst reasonable and practicable prior to the offence, constitute the "outer layers" of the relevant safety system; o Whilst, prima facie, the risk of a potential electric shock is serious, the risk of potential electric shock would have been significantly reduced, if not eradicated, by Potts complying with straightforward procedures from which he departed; o In terms of assessing the foreseeability of injury, and the potential seriousness of that injury, and hence the gravity of the breaches constituted by the failure to put in place the additional measures that Capral did subsequently introduce, it is necessary to have regard to the fact that it was hardly foreseeable that a qualified electrician such as Potts would fail in the way he did; o Properly assessed, it was not foreseeable that the failure to have in place the measures subsequently introduced by Capral would have any significant likelihood of producing serious consequences; o The pre-existing safety system, including its reliance upon a qualified electrician and existing isolation procedures, addressed the major risk, but was undermined by individual non-compliance. · For the above reasons the nature and quality of the offence should be properly be assessed at the lower end of the range of potential breaches that may occur in relation to electrical isolation procedures and related signage, supervision and training. · The consequences of the incident would only be relevant if a serious injury had in fact been involved and then only for the purpose of illustrating the seriousness of the relevant risk, the gravity of the offence and the necessity for deterrence. The expert witness report of Associate Professor Grantham illustrates that there was a limited risk of injury involved in the relevant incident and further confirms the deficiencies in the conduct of Potts as an electrician in the circumstances. · Other information relevant to the assessment of the nature and quality of the offence included: o The two isolation switches in the cranes and the fact that there was a direct current (DC) electricity supply system; o The steps taken by Capral prior to the offence; o The training undertaken by Capral of employees and contractors in relation to safety; o The seriousness of the offence. · The subjective factors relevant to the assessment of penalty included the following: o The steps taken subsequent to the incident to remedy any deficiencies; o The provision of information to WorkCover regarding the incident; o Capral's proactive approach to WorkCover prior to the commencement of any prosecution; o The plea of guilty; o Cooperation with WorkCover; o The defendant's prior record; o The nature and size of the defendant's undertaking; o The defendant's character as a corporate citizen; o The defendant's ongoing commitment to occupational health and safety; o The defendant's assistance to the contractor employees; o the defendant's contrition and remorse. · The assessment of penalty.

[52]

33 Another important factor to be taken into account in assessing the objective seriousness of the offence is that whilst the defendant did have extensive safety procedures and systems in place at the time of the incident in October 1998, and that this is a factor that is relevant to an assessment of the seriousness of the offence: Department of Mineral Resources (NSW) (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27; McDonald's at 449, given the obligations imposed on employers by s 16(1), the laying down of safety procedures and the giving of instructions may not, in many cases, be adequate. In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 a Full Bench of the Commission in Court Session said: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act 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. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. 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." 16 Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: "In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8)."

[72]

48 Mr Harmer also referred to the judgment of Hill J in WorkCover Authority of NSW v Capral Aluminium Limited (29 July 1998) where his Honour said: …it is incumbent upon me under the authorities to which I have referred, to have due regard to other offences committed by the defendant, more particularly perhaps the interim ones, including that which was the subject of conviction on 14 May 1998 in proceedings before Schmidt J. In that case, the defendant was convicted and fined $30,000 in relation to an accident on 4 September 1995, involving an employee being run over by a fork lift at the Granville premises. In the context of the objects of the Act it is appropriate to have regard to all offences which occurred after the offences in this case and to balance them against the mitigations or reductions of penalty which the defendant would otherwise merit. It is appropriate also to consider the antecedent convictions. In my opinion, however, this is clearly not a case where the history or record shows some "dangerous propensity" or "a need to impose condign punishment to deter the offender". I do not consider that the defendant has manifested a continuing attitude of disobedience to or lack of regard for its obligations under the Act. The evidence in fact shows, and I have in effect found, quite the contrary. When considering the application of the principles applicable to fixation of penalties under the Act including those laid down in Veen and in Boney and other relevant authorities, regard must be had to, inter alia, the absolute nature of the duty imposed by the statute, the nature and size of the defendant's various operations, and the objective evidence of its attitude and approach, both generally and in the particular case, to the fulfilment of its obligations under the Act. The defendant here is a large employer in heavy industry, with about 1700 - 1800 employees in New South Wales alone and carries on operations at four separate sites in the state and at about nine others in other states and territories. I should say that I am satisfied on the material before me that, the defendant is, in general, a good corporate citizen which takes seriously, and adopts practices and procedures designed to fulfil, its duties under the Act. Accordingly, having regard to the nature and quality of the offences in this case, the measure of culpability of the defendant, the principle of totality, and the various mitigating factors to which I have referred, and balancing against them the other offences of the defendant having regard to their nature and quality, I consider that an appropriate penalty in respect of both offences, is the sum of $25,000.

[78]

54 The approach I have taken to sentencing in this case is that articulated by Kirby P in Camilleri's Stockfeeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 698-699, namely: 1. While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence: R v H (1980) 3 A Crim R 53 at 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community: see also the comments of the Hon T.J. Moore in New South Wales Parliamentary Debates (Legislative Assembly), 20 November 1990, 10037 at 10038. The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 2. A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, "that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category": Veen v The Queen [No 2] (1988) 164 CLR 465 at 478. 3. The Court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender. In this process, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the Court should resolve the conflict of fact in favour of the offender: see R v O'Neil (at 588). 4. While the offender can only be sentenced for the offence for which it has been convicted, the court is "bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict": R v De Simoni (1981) 147 CLR 383 at 396. Such an approach is consistent with the Court's proper evaluation of an offender's antecedent history where it does not lead to the imposition of a penalty disproportionate to the gravity of the particular offence(s) charged: see Veen v The Queen [No 2] (at 477).

[86]

1 APPENDIX A CAPRAL ALUMINIUM LTD ANTECEDENT CONVICTIONS AS AT 30 OCTOBER 2001 Conviction Date Type of Incident Date of Incident Section of Act Fine Location of Incident 1 26.2.73 Burns to right foot 25.5.72 S&LA $20 Kurri Kurri s 17(3)(a) 2 27.5.85 Injury to finger 19.1.84 FSIA s 27(1) $700 Kurri Kurri 3 2.12.85 Not known Not known OHSA s 15(1) $1,000 Kurri Kurri 4 24.11.86 Not known Not known OHSA s 16(1) $800 Not known 5 27.7.87 Fractured leg 23.1.85 OHSA s 15(1) $1,500 Kurri Kurri 6 23.11.87 Damage to lifting gear 1.8.85 CSA s 17(3) $500 Kurri Kurri 7 19.10.88 Injury to fingers 22.5.87 FSIA s 27(1) $1,000 Cabramatta 8 19.10.88 Injuries to hands and finger 16.9.86 FSIA s 27(1) $1,500 Granville 9 21.1.90 Injury to finger 11.1.88 FSIA s 27(1) $1,500 Granville 10 29.1.90 Injury to fingers 21.1.88 FSIA s 27(1) $2,000 Granville 11 22.8.90 Injury to finger 23.2.89 FSIA s 27(1) $1,500 Cabramatta 12 5.11.90 Fractured ribs and scapula, 6.12.90 OHSA s 15(1) $2,500 Kurri Kurri Lacerations to back 13 9.7.93 Concussion and fractured ribs 14.7.92 OHSA s 15(1) $2,500 Kurri Kurri 14 14.11.95 Injury to fingers 26.11.94 OHSA s 15(1) $3,000 Cabramatta 15 21.3.96 Injury to fingers 20.3.95 OHSA s 15(1) $4,000 Giraween 16 4.11.96 Fall into pit 20.4.94 OHSA s 15(1) $4,000 Granville 17 18.2.97 Injury to fingers 14.9.95 FSIA s 27(1) $4,500 Giraween 18 11.3.97 Electric shock 3.12.94 OHSA s 15(1) $5,000 Granville 19 9.10.97 Fall into pit 10.1.95 OHSA s 16(1) $7,500 Granville 20 12.2.98 Forklift overturned 16.2.96 OHSA s 15(1) $20,000 Granville 21 15.5.98 Fractures and internal injuries 4.9.95 OHSA s 15(1) $30,000 Granville 22 15.5.98 Broken trailer hitch 4.2.96 OHSA s 15(1) $6,000 total, Kurri Kurri $2,000 each charge 23 29.7.98 Burn injuries 19.9.94 OHSA s 15(1) $25,000 Granville 24 5.8.98 Failure to maintain electric 28.6.95 OHSA s 15(1) $40,000 Granville overhead crane. No injury sustained 25 9.12.98 Internal injuries 22.11.96 OHSA s 15(1) $12,500 Granville 26 23.2.99 Emission of vapours from degreasing tank 5.8.94 OHSA s 15(1) $20,000 Granville 27 & 28 9.4.99 Failure to provide protective equipment against explosion of molten aluminium 11.3.97 OHSA s 15(1) $150,000 Kurri Kurri 29 25.8.00 Top of middle finger and ring finger severed above the first knuckle 15.7.97 OHSA s 15(1) $22,500 Granville 30 30.1.01 Crush injury to hand and wrist 28.7.98 OHSA s 16 $25,000 Granville 31 8.3.01 Burns and ulcerations to oesophagus and throat from exposure to mixed gases 7.10.97 OHSA s 15(1) $200,000 Kurri Kurri