Inspector Lyndon Tomlinson v Onesteel Reinforcing Pty Limited

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

Caparal Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Inspector Aldred v Herbert and others [2007] NSWIRComm 170 CASES CITED: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pt Ltd (2004) 136 IR 449 WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80

PROSECUTOR: Mr R Reitano of counsel WorkCover Authority of New South Wales (Ms F Miller) LEGAL REPRESENTATIVES: DEFENDANT: Mr R S Warren of counsel Blake Dawson Waldron Lawyers (Mr S Nettleton and Mr T Sebbens)

INSPECTOR LYNDON TOMLINSON v ONESTEEL REINFORCING PTY LIMITED

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

1 Onesteel Reinforcing Pty Limited has pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000 (OHS Act 2000). The charge, set out in an application for order, alleges that on 4 March 2005, at premises at Revesby, the defendant failed to ensure the health, safety and welfare at work of its employees, in particular, John Vaimoe Afoa. The particulars of the charge allege: (a) [failure] to provide and maintain a safe system of work in relation to the lowering and removal of suspended or hung forklift loads in circumstances where the mast of the forklift was or became jammed; (b) [failure] to have a procedure in place for identifying and controlling the risks associated with suspended or hung forklift loads and for lowering and removing a suspended or hung forklift load in circumstances where the mast of the forklift was or became jammed; (c) [failure] to provide plant, being a Nissan Forklift Model PGF02 Serial Number 021280, that was safe and adequately maintained; (d) [failure] to provide adequate supervision in relation to the use of forklifts and, in particular, in relation to the use of forklifts where the load was suspended or hung in circumstances where the mast of the forklift was or became jammed; (e) [failure] to ensure that employees working with forklifts (whether as operators or not) were properly instructed and trained in all aspects of the proper and safe use of forklifts and, in particular, in relation to the use of forklifts where a load was suspended or hung in circumstances where the mast of the forklift was or became jammed. 2 At the time of the offence Mr Afoa was employed by the defendant as a machine operator. Mr Ung was Mr Afoa's team leader. At about 7pm on 4 March 2005 Mr Ung drove a forklift truck to which was attached a scrap dumping bin, to an area within the defendant's premises in order to empty its contents. The bin was secured to the forklift with a sling and shackle which were in turn secured to the mast of the forklift. The procedure for emptying the bin was to lift it a little from the ground. Mr Ung emptied the contents of the bin, but when he attempted to lower it he could not get the forklift mast and tynes to operate in the normal range of movement. As a result, the forklift tynes, to which the bin had been secured, could not be lowered more than about 1.7 metres from the ground. Mr Ung made a couple of further attempts to lower the bin which were unsuccessful. He then drove the forklift with the bin still attached in the raised position back to an area designated as Bay 7 where he had first picked up the bin. He parked the forklift in neutral and put on the handbrake. 3 According to the agreed statement of facts Mr Ung then got Mr Afoa to assist him. Mr Afoa used the hoist control and attempted to lower the tynes, again unsuccessfully. According to Mr Ung, Mr Afoa then went to the front of the bin and tried to shake it down. Mr Ung said he told Mr Afoa, "Don't do it, its going to drop on your feet". Mr Afoa, however, went back to the forklift, unshackled the sling and then shook the bin again. According to Mr Ung he repeated his instructions to Mr Afoa not to shake the bin. Mr Afoa gave a different version of events in relation to this particular activity. He recalled stepping up on the forklift to have a look. He also recalled a discussion between himself and Mr Ung during which a decision was made to push the bin back up and secure the safety latch on the bin. Mr Ung denied that this discussion took place. Mr Afoa denied that he was instructed by Mr Ung not to go under the forklift tynes while the bin was in the raised position. 4 Although these conflicting versions are set out in the agreed statement of facts, they bear little if any relevance to the nature and quality of the offence, dealing as they do with the circumstances of an accident and not with the risk to safety. They are mentioned in these sentencing reasons only for completeness. 5 What appears not to be in issue in the sequence of events is that at some stage Mr Ung noticed that the right mast wheel of the forklift was outside its channel, and he informed Mr Afoa who went to the location where he had unshackled the bin and proceeded to tap the bin with the palm of his gloved hand. Mr Ung, who considered that this activity would not achieve the desired result, then found a piece of steel which he showed to Mr Afoa, and proceeded to tap the bin at the same time instructing Mr Afoa to stay in front of the bin. On about the fourth tap Mr Ung heard a loud bang. He got down off the forklift and saw Mr Afoa trapped under the tynes of the forklift. Mr Afoa recalled being at the front of the bin and attempting to push it up when it fell down on him. 6 Tony Taueva, a machine operator employed by the defendant observed some of the activity involving the attempts of Mr Ung and Mr Afoa to lower the tynes of the forklift. According to him Mr Ung drove the forklift with the bin in the raised position back to the Bay 7 area and thereafter requested assistance from Mr Afoa. He saw them both shaking the bin, and he saw Mr Ung trying to move the levers. He then saw both Mr Ung and Mr Afoa hitting the bin on the side with bars, and Mr Ung returning to the forklift and attempting to shake the lever. He turned away to continue his own work when he said he heard a loud bang. He went out to see what had happened and saw Mr Afoa lying on the floor injured and being assisted by a co-worker. 7 Mr Afoa was taken to Bankstown Hospital, where he was found to be suffering from a head injury, an abdominal injury and a fractured hip. At the time of the sentencing proceedings he continued to suffer headaches, memory impairment and had difficulty concentrating. He had not returned to effective work and his employment with the defendant ended at the end of his 12 month fixed term contract. He was receiving payments under the relevant workers compensation legislation. 8 The defendant had in place prior to and at the time of the offence a comprehensive and effective system for dealing generally with defects or faults identified in forklifts. The evidence tendered during the sentence proceedings showed that Mr Ung was trained in many aspects of the system and was aware, in particular, of what to do when encountering a problem with a forklift. He was also aware of the defendant's requirement to follow the system. Mr Ung's knowledge and understanding of the system was acknowledged by him in his record of interview with WorkCover shortly after the accident. In the affidavit of Brenton Donald Michaels, the defendant's NSW Operations Manager, the following extract from that interview appeared: Q77. What is the usual procedure to report problems with the forklifts? A77. Ah, if the forklift have a problem we always report it, we have to take the key off and tag it properly and on the tag there is a name of the person who identify if there something wrong on the forklift. And we have to report it to the maintenance shop and write a green slip and give the key and the green slip to the maintenance area. 9 The risk to safety arose, in circumstances where Mr Ung decided, unilaterally, to fix the problem posed by the jammed tynes and mast of the forklift with the assistance of Mr Afoa, who was attempting to push up the bin when it fell on him (or when he became trapped under the tynes). The bin, which was empty at the time of the accident, nevertheless weighed some 200 kilogrammes. Had Mr Ung followed the defendant's procedure the bin would not have fallen on Mr Afoa, (or he would not have become trapped under the tynes), and there would have been no risk to his safety. 10 The defendant's system for dealing with faulty plant or equipment (including forklifts) was set out in the affidavit of Mr Michaels, and in the agreed statement of facts. The system may be conveniently described by reference to three components. 11 First, the defendant had a procedure called a Forklift Truck Drivers' Daily/Shift Checklist, which required every forklift to be checked prior to its operation. The check was undertaken by the forklift's operator. The checklist required the operator to identify whether various parts of the forklift were "ok" or "needs attention/repair". It specifically required that the masts and attachments be inspected. Mr Ung, who was licensed to operate a forklift, had successfully completed pre-start checklists in conformity with the prevailing procedure. He had not however, completed the pre-start check on the condition of the forklift which was involved in the accident, on the day of the offence. 12 Secondly, the defendant had a procedure which required the operation of plant or equipment, including forklifts, to cease and warning tags to be attached to the plant once a fault was identified with the plant or equipment. The same procedure was to apply in the event that a fault occurred during the operation of the plant or equipment. With regard to a forklift this meant that the forklift was to be turned off, no longer operated and a warning tag attached. The warning tags, which were accessible to all employees, were to include the details of the fault, the date of detection and the name and department of the person who attached the tag. 13 Thirdly, following the identification of a fault, the defendant required that a maintenance service request (MSR) form, also known as a green slip, be completed and forwarded to the defendant's maintenance department at Revesby. The form was to include information on the time, date and location of the plant or equipment, and the fault identified. Mr Ung had previously completed MSR forms for faulty equipment and was therefore aware of the procedure. 14 After tagging out the defective item, the next step in the procedure required the maintenance department to be notified. This was done by sending the department the MSR form. Maintenance of forklifts was outsourced to Oden Equipment Pty Ltd and arrangements made for Oden to attend the Revesby site and repair the forklift. When undertaking the repair work Oden was to complete a risk assessment for the work to be done in accordance with its own safe systems of work. When the plant or equipment was repaired, the defendant's maintenance department verified that the repairs had been done and arranged for the handover of the item to the relevant operations employees who signed off on the repairs, signifying that the repairs had been completed and that the item was in working order. 15 In the circumstances leading up to the accident Mr Ung did not tag out or report the problem with the forklift's suspended load using the MSR form procedure, even though he was aware of the procedure. The system required that operations employees, such as Mr Ung, not work on, or attempt to repair faulty plant or equipment. Once operations employees identified a fault and tagged out the item, they were to have no further involvement in using or repairing the item. It is clear from the extract of Mr Ung's record of interview, earlier referred to in these sentencing reasons, that Mr Ung was aware of these requirements at the time of the offence. 16 The prosecutor submitted in oral submissions that the defendant's statutory obligations extend to having in place procedures which take into account the fact that, "people don't do what they're told, for whatever reason", and that the defendant was obliged to guard and protect against the actions of Mr Ung which involved errors of judgment and mistakes. 17 The submission echoes the well-known principle in occupational health and safety prosecutions which imposes a requirement on a defendant to be pro-active in seeking out risks to safety and taking appropriate measures to obviate those risks. The requirement, however, which has undoubted relevance in occupational health and safety prosecutions, does not, in the present circumstances, derogate from the finding, which I am prepared to make, that the defendant had a system of work in the event plant or equipment used within its premises was identified as defective. In other words, the system demonstrated that the defendant had to a significant extent been pro-active in identifying and taking measures to minimise the risks to safety. In WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 Hill J observed: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. I am satisfied that the defendant approaches its duties under the Act on that basis. But it is always possible to achieve greater effectiveness and success as this case demonstrates. 18 In the present circumstances the defendant's system, although comprehensive, lacked a procedure for dealing with the lowering and removal of suspended forklift loads in circumstances where the mast of a forklift became jammed (particulars (a)(b)(d) and (e) of the offence). Following the offence however, the defendant had taken prompt and effective measures to address this gap in its system. The measures included the retraining of employees in the correct use and application of the Forklift Truck Drivers' Daily/Shift Checklist and the MSR procedure. A national audit of the integrity of mast roller bearings on all the defendant's forklifts had also been undertaken. Following the issue of improvement notices by WorkCover the defendant tailored risk assessments for the emptying of waste tipper bins in compliance with the notices. It also conducted an audit into the integrity of waste tipper bins and undertook a replacement and upgrade programme and developed training and competency assessment instruments for the emptying of the bins. In addition, a safety leadership programme was developed and implemented. The programme focused on the skills and competencies required of front line leaders within the defendant's organisation and gave particular attention to the use of warning tags, MSR forms, incident reporting and behavioural auditing. Inspection on the afternoon shift (the time when the accident occurred) at the Revesby site was implemented and included the appointment of a dedicated afternoon shift supervisor. Many of these measures no doubt could have been put in place prior to the offence. These facts exacerbate the objective seriousness of the offence. Nevertheless, the Court is prepared to take into account the extent and effectiveness of the defendant's more general system of safety in place prior to the offence as mitigating the otherwise objective seriousness of the offence. 19 Before leaving this point I should make brief reference to other aspects of the defendant's safety system which were in place prior to the offence. These other aspects have been set out in some detail in the affidavit of Mr Michaels, and include training regimes and site inductions of all employees at the Revesby site. All employees who operated forklifts at the site were required to be licensed. Mr Ung had successfully undertaken forklift training and obtained his forklift driver's licence on 9 September 2003. All forklift operators were also required to undertake annual refresher training on the safe use of the machines. Mr Ung had successfully completed this refresher training on 8 September 2004. Earlier, on 6 February 2003, Mr Ung had also completed training on forklift exclusion zones and on the control of risks associated with the interaction between forklifts and employees. In July 2004 Mr Ung completed refresher training, part of which included questions concerning the operation of equipment with warning tags attached, and instructions on the repair of equipment. 20 Mr Afoa was not required to operate forklifts or repair or maintain them. He was required to isolate and place a warning tag on any plant or equipment, including forklifts, and complete a MSR form in the event a fault occurred. Mr Afoa had also completed various training modules as part of the defendant's training regime, prior to the offence. These included mandatory computer based induction modules with respect to general safety, and plant safety and induction training. Documentation annexed to Mr Michaels' affidavit disclosed that Mr Afoa, like Mr Ung was aware that he was not permitted to operate equipment with warning tags attached, or repair equipment, and that he was to report any equipment or plant that looked unsafe. 21 Mr Michaels' affidavit also contains information on various safety codes, goals and procedures which the defendant had in place prior to the offence and which discloses that its commitment to occupational health and safety was taken very seriously. The defendant's board, for example, had an occupational, heath, safety and environment sub-committee which was responsible for overseeing the implementation of safety instructions and the monitoring and review of safety performance across the defendant's group of companies. The sub-committee, which continues in existence, meets quarterly and receives and reviews reports on significant injuries, incidents, compliance with legislative standards, and feedback from audits. The defendant also had in place at the time of the offence a comprehensive induction programme which included instructions on the interaction with forklifts and isolation and tagging procedures. It also had in place risk management programmes, an induction procedure and job safety analysis for contractors, as well as a rigorous auditing programme.

22 The defendant also had in place at the Revesby site a system for the service and maintenance of forklifts. According to Mr Michaels in his affidavit, the forklift involved in the accident had undergone a major service 12 months beforehand. Over the 12 month period the defendant had spent about $14,000 on the forklift in order to ensure that it was in a workable and safe condition. The affidavit of Mr Michaels set out an extract of an interview between WorkCover and Warren Watts, service manager for Oden, (the company to which the defendant outsourced its forklift maintenance prior to the offence) in which Mr Watts said the forklift was in very good condition after it had been serviced in that it was within the manufacturer's guidelines. Since the offence the defendant has entered into a contract with another service company, Red Australia Pty Limited. This company has modified a new fleet of forklifts to meet the defendant's requirements which are now leased to the defendant and serviced by Red Australia. 23 In the charge to which the defendant has pleaded guilty, particular (c) alleged that the defendant had failed to provide that the forklift involved in the accident was safe and adequately maintained. During the course of its investigation into the circumstance of the offence, WorkCover obtained a report from Testsafe Australia, which examined and tested the forklift after the accident. The report found that the forklift was in average condition but that a number of items required maintenance. The main problem with the forklift, according to the Report, was a failure of the mast roller ball bearing located in the top right hand mast bearing. This bearing had failed and allowed all of its ball bearings to be released and lost. In addition, a large portion of the retaining cage for the balls was missing. The report proffered an opinion, "that the failure of this bearing would have taken place over a reasonable period of time but this is difficult to assess because it relies on the amount and type of usage the bearing undergoes during the failure process. It is certain however that the bearing did not end up in this condition from an instantaneous failure." In relation to the cause of the accident, the report concluded: The incident is considered to have occurred primarily due to inadequate maintenance on this forklift machine, in that a bearing failure occurred, and subsequent to that was not detected at any time following the onset of the failure mode until this incident occurred. However, had the mast on the machine not been extended to full height during its use, this incident would not have occurred, as the remaining mast roller ball bearings appeared to be intact and held the mast together. It is expected that the failure of the bearing to the degree evident during the investigation would have taken a significant period of time, however this period is not definable. Considering that the machine had been the subject of significant servicing in the months preceding the event, it would have been expected that the condition of the bearing would have been found, especially since the machine was the subject of what appears to be preventative maintenance servicing (assuming the P.M. Service on ODEN job number 32762 dated 11/2/05 means preventative maintenance service) less than 4 weeks before this event occurred. A number of ODEN service records for this machine were provided by Inspector Tomlinson. 24 In oral hearing, counsel for the defendant, Mr Warren, submitted that the Testsafe report had concluded that it was difficult to assess when the bearing failure on the forklift had occurred. Mr Warren described it as "curious" (to Testsafe) as to why the failure had not been identified, since it would have been "patently obvious" to anyone performing the maintenance. The inference which the Court was asked to draw from this was that the defect in the forklift was not in existence at the time of the last maintenance of the forklift before the accident. 25 A number of observations may be made about this particular submission. First, although the Testsafe report suggested that it was difficult to assess when the bearing failure had occurred it nevertheless postulated that it would have taken place over a "reasonable period", or a "significant period" of time. Neither of these conclusions tend to lend support to the submission that the failure must have occurred sometime after the last service on the machine. That service was done, according to records, on 11 February 2005, only some three weeks before the accident. This relatively short period of time, given the conclusions in the report, does not tend to suggest that the failure occurred after the last service, but rather that it could in all probability have occurred over a longer period of time. Secondly, although the defendant was entitled to rely on the specialist services of its contractor, it was incumbent upon the defendant to ensure that the maintenance was adequately performed, so that the forklift could be safely operated. This is a well-known, uncontroversial proposition that reflects a defendant's obligation to ensure safety under the OHS Act 2000: see for example Inspector Aldred v Herbert and others [2007] NSWIRComm 170 at [29] for the proposition that where a defendant lacks appropriate expertise or qualifications for a particular task, it is obliged to ensure that some other suitably qualified person or persons can safely perform or carry out that particular task. Thirdly, it does not necessarily follow that because a defect was obvious at the time of an accident it could not, for that reason alone, have existed previously at the time of maintenance of the particular item exhibiting the defect. For these reasons, the defendant's submission is rejected. 26 The risk to safety which arose from the inadequate maintenance of the forklift was both obvious and reasonably foreseeable. It was conceded by the defendant during oral submissions that forklifts are potentially dangerous items of equipment which is precisely why it had implemented training regimes which dealt specifically with the safe operation of forklifts. In addition to these considerations, in the absence of a system for lowering and removing the suspended forklift load or a procedure for identifying and controlling the risks associated with the removal of suspended forklift loads, when the mast was jammed, and in the absence of any instructions, training and supervision for dealing with those contingencies, it must follow that, objectively the risk to safety was reasonably foreseeable.

27 The particulars of the offence, apart from particular (c), were confined to the activity associated with the lowering and removal of suspended forklift loads, in circumstances where the mast was jammed. Those circumstances prevailed at the time of the accident. The defendant, as earlier noted, did not have in place a system of safety for dealing with this particular activity. Mr Warren submitted, in relation to this issue, that Mr Ung's conduct (which included his actions in hitting the side of the forklift mast with a metal bar) was "inexplicable". His actions were contrary to instructions and contrary to the specific training he had received in relation to forklift procedure. Mr Ung was also aware of the procedure. Mr Warren conceded that the defendant knew of the risks to safety posed by forklift trucks. This was evident by reason of the defendant's comprehensive safety systems regarding the use and repair of forklifts. Mr Warren also conceded that the risk to safety was foreseeable because forklifts are, "potentially dangerous piece[s] of equipment". Mr Warren however, urged a submission upon the Court that there was a distinction, for the purposes of sentencing, between the foreseeability of a risk to safety and the foreseeability of an accident. According to Mr Warren the foreseeability of an accident was a "significant factor" to be taken into account with respect to penalty, and in the present circumstances, the accident was not foreseeable. 28 In support of the submission the defendant relied on the judgment of Walton J Vice-President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27 where his Honour said: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) , the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and University of Sydney (at 16).

29 The particular passage, as Mr Warren pointed out, was approved by the Full Bench in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at [81]. In Kembla Coal Walton J also made the following further observations on the issue of foreseeability (at 27, 28): In Inspector Hannah v Rice Growers Co-Operative Ltd (unreported, CT90/88, 20 November 1990), Fisher P commented, in relation to an offence under s 15 of the Act, that (at 7-8): "It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures."

This passage is, in my view, pertinent to the current case. Whilst the accident resulted from a coincidence of events, the occurrence of an accident of this type was, in my view, reasonably foreseeable. The danger posed by the escape of flammable gases from the disused mine was known and acknowledged by the defendant. The prospect of persons entering the site, which was after all merely 100 metres from a public road, was foreseeable. It was against this very danger that the fencing and signs were later placed on the main entrance to the site.

30 Mr Warren advanced those passages from Kembla Coal in support of his submission that the foreseeability of an accident was relevant to the question of penalty. As I observed during the sentence proceedings I do not agree with Mr Warren's construction of the above passages from Kembla Coal. Rather, it seems clear that in those passages his Honour was at all times addressing the reasonable foreseeability of the risk to safety as relevant to the sentencing process, not the foreseeability of an accident. Nor do the authorities in this jurisdiction, of which there are many, provide support for Mr Warren's submission. Instead they provide unequivocal support for the proposition that the foreseeability of an accident is not relevant to the question of penalty for occupational health and safety offences. By way of illustration one such authority is WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pt Ltd (2004) 136 IR 449 at [79] to [81] where the Full Bench found: [79] We are satisfied that the Deputy Chief Magistrate found, correctly in our view, that the risk was foreseeable. However, as was concisely stated in the decision of the Full Bench in Capral Aluminium , "the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature". Despite her clear findings as to foreseeability, the Deputy Chief Magistrate ignored the inescapable conclusion that such foreseeability renders the offence more serious and raised questions about the proper exercise of discretion under s 10. Further, given the evidence of Dr Boulais that the mean age of cleaners employed by the respondent was 65, that Ms Pyart herself was age 60 at the time of the accident, and that Ms Pyart was said to be overweight, the foreseeability of the risk was self-evident.

[80] Her Honour also made the following additional observation regarding the foreseeability of Ms Pyart's injuries: "Certainly the injury was relatively severe, however the circumstances surrounding the injury were not such that a severe injury could have been foreseen in such a way - well, it could have been foreseen in such a way but perhaps not such a severe injury." [81] We consider this approach to be erroneous. The Deputy Chief Magistrate focussed on the foreseeability of the injuries sustained by Ms Pyart rather than the foreseeability of a risk to her safety in arriving at her decision to dismiss the charge under s 10 of the Crimes (Sentencing Procedure) Act . 31 Counsel for the prosecutor, Mr Reitano, submitted that the consequences of the breach of the OHS Act 2000 exhibited serious injuries to Mr Afoa, and that Mr Afoa's injuries were a manifestation of the seriousness of the risk to safety. Counsel for the prosecutor submitted that the consequences of the defendant's failures under the OHS Act 2000, which resulted in serious injuries to Mr Afoa, could have been more serious, although not so serious as to have resulted in a fatality. I agree that Mr Afoa's injuries could have been more serious. The forklift was defective by reason of the jammed mast. The suspended bin weighed some 200 kilogrammes. Mr Afoa was precariously positioned near the bin when it fell on him. These circumstances were a direct result of the defendant's failures to ensure Mr Afoa's safety, and indicated a potential for very serious injury. The defendant's failures to provide a safe system or procedure for its employees in relation to the forklift and its suspended load therefore had every prospect of serious consequences: Capral Aluminium at [94] [95]; Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] [18]. This factor also serves to demonstrate the objective seriousness of the offence. 32 Mr Reitano submitted nevertheless, that the offence although serious, having regard to the nature of the risk and in particular having regard to its consequences, was not at, "the high end of the scale". Given the defendant's comprehensive system of safety in place prior to the offence which incorporated specific procedures with regard to the operation and repair of forklifts, and the fact that Mr Ung was both aware of the procedures, and had been trained in relation to them, I agree. These matters serve to mitigate the otherwise objective seriousness of the offence to a significant degree. 33 Although the parties did not address the issues of general and specific deterrence in their submissions both principles are relevant to the sentencing process. In the context of general deterrence, the manufacture of steel and steel products, which was the defendant's undertaking at the Revesby site, involves the use of heavy equipment and the movement of heavy product. As has been recognised many times in the jurisdiction, forklift trucks can be notoriously unstable and dangerous to work with. These matters and the circumstances of the offence combine to again compel attention to employers, engaged in similar industrial undertakings, to take appropriate measures to ensure that their workers and other personnel at their industrial sites are safe and can perform the work safely. 34 Specific deterrence is also important and must be taken into account as the defendant continues to operate in the industry and employ a large workforce. 35 The defendant, the Court was informed, has a prior conviction which means that the maximum penalty it faces for the offence is $825,000. 36 The affidavit of Mr Michaels set out in detail the safety procedures the defendant continues to have in place at the Revesby site. Since the offence the defendant has also expended nearly $1,000,000 on safety improvements at the site as well as expending considerable resources on safety training. The agreed statement of facts notes that following the offence the defendant retrained its employees in the correct use and application of the Forklift Truck Drivers Daily/Shift Checklist and in the MSR procedure. It also conducted a risk assessment on the scrap dumping bin process. These matters have been earlier referred to in some detail in the sentencing remarks. They are taken into account as subjective factors in further mitigation of penalty. 37 The defendant through its counsel, Mr Warren, also expressed its deep regret for the injuries suffered by Mr Afoa. It also makes a valuable contribution to the community through assistance to the young, and the disadvantaged. It has since 2003 donated $800,000 to a number of Australian Charities. It has an excellent safety record at the Revesby site and a good safety record generally at its other premises. It also fully co-operated with WorkCover during the investigation of the offence. These matters will also be taken into account by the Court in further mitigation of penalty. 38 The defendant also pleaded guilty at an early stage. The prosecutor did not submit otherwise. In these circumstances I propose to award a discount for the utilitarian value of the plea of 25 per cent. The defendant is also entitled to leniency of penalty by reason of the contrition expressed, inherent in its plea of guilty. 39 In determining penalty against the defendant I have taken into account the objective seriousness of the offence, the maximum penalty, the personal factors in mitigation, and the prior conviction. All matters have been considered by reference to the Crimes (Sentencing Procedure) Act 1999, in particular s 21A. Orders

40 In Matter No IRC 254 of 2007 I make the following orders.

1. The defendant is convicted of the offence.
2. The defendant is fined $100,000 with a moiety to the prosecutor.
3. The defendant is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement as assessed.

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