Inspector Maddaford v Mulgoa Quarries and CSR Limited

PROSECUTION Ms A F Backman of counsel Solicitor: Mr G Diggins WorkCover Authority of New South Wales

FIRST DEFENDANT Mr D O'Neil of counsel LEGAL REPRESENTATIVES: Solicitor: Mr M Mulock Mark Mulock & Co Pty

SECOND DEFENDANT Mr M Shume of counsel Solicitor: Mr T Plummer Moray & Agnew

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 19 December 2003

Matter No IRC 2622 of 2002 INSPECTOR MADDAFORD v MULGOA QUARRIES PTY LIMITED

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

Matter No IRC 2623 of 2002 INSPECTOR MADDAFORD v CSR LIMITED

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983

1 Mulgoa Quarries Pty Limited ("the first defendant") employed William Besant as a truck driver responsible for the haulage of quarry products. On 12 May 2000 Mr Besant was delivering a load of raw material for use by CSR Limited ("the second defendant") in the manufacture of building materials at its Horsley Park Manufacturing Plant. Mr Besant drove his vehicle onto the weighbridge owned and operated by the second defendant at the entrance to its Horsley Park plant in order to weigh his truck and cargo and cause a computer generated delivery docket to be produced. Mr Besant alighted from his prime mover and was either making his way to the weighbridge computer from the weighbridge or was at the weighbridge computer when he struck his head on the concrete pathway situated below and adjacent to the weighbridge and sustained fatal injuries.

2 Inspector Gregory Maddaford ("the prosecutor") of the WorkCover Authority of New South Wales prosecuted the first defendant under s 15(1) of the Occupational Health and Safety Act 1983, which is in the following terms: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. 3 Inspector Maddaford prosecuted the second defendant pursuant to s 16(1) of the Act. Section 16(1) provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

4 The charge against the first defendant alleged the defendant: failed to ensure the health, safety and welfare at work of all its employees, and in particular William Besant, contrary to section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are:

(a) At all material times the defendant carried on the business of supplying and hauling quarry products.

(b) At all material times the defendant employed William Besant as a truck driver responsible for the haulage of quarry products. (c) At all material times the defendant contracted with Monier PGH Holdings Limited, a wholly owned subsidiary of CSR Limited, to supply and deliver raw materials for use by CSR Limited in the manufacture of building materials at a Manufacturing Plant located on Old Wallgrove Road, Horsley Park in the State of New South Wales ("the Horsley Park Manufacturing Plant").

(d) At all material times CSR Limited owned and operated a 'GEC Avery' weighbridge ("the weighbridge') and associated computer ("the weighbridge computer") installed at the Horsley Park Manufacturing Plant.

(e) At all material times CSR Limited carried on the business of manufacturing building materials trading as 'PGH Bricks & Pavers' from the Horsley Park Manufacturing Plant and employed persons in the conduct of that business.

(f) At all material times drivers employed by the defendant transported raw materials to the Horsley Park Manufacturing Plant in accordance with the contract between the defendant and Monier PGH Holdings Limited.

(g) At all material times CSR Limited, in accordance with the contract between the defendant and Monier PGH Holdings Limited, required drivers employed by the defendant to weigh their vehicles and cargo upon the weighbridge and cause a computer generated delivery docket to be produced in the course of effecting the delivery of raw materials to the Horsley Park Manufacturing Plant.

(h) At all material times drivers employed by the defendant were required by CSR Limited to move between the weighbridge and weighbridge computer in order to cause a computer generated delivery docket to be produced.

(i) At all material times there was a risk to the health, safety and welfare at work of the defendants employees, and in particular William Besant. In particular, there was a risk of employees slipping and/or falling when gaining access to and egress from the weighbridge computer.

(j) At all material times the defendant failed to implement adequate measures to ensure employees did not use the steel beam and square steel supporting post fixed to the steel beam and concrete walkway as a means of access to and egress from the weighbridge computer.

5 The charge against the second defendant alleged the defendant: failed to ensure that persons not in its employment, and in particular William Besant, were not exposed to risks to their health and safety arising from the conduct of its undertaking, to wit, the operation of a 'GEC Avery' weighbridge and associated weighbridge computer, while they were at its place of work contrary to section 16(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are:

a) At all material times Monier PGH Holdings Limited, a wholly owned subsidiary of the defendant, contracted with Mulgoa Quarries Pty Limited for the supply and delivery of raw materials for use by the defendant in the manufacture of building materials at a Manufacturing Plant located on Old Wallgrove Road, Horsley Park in the State of New South Wales ("the Horsley Park Manufacturing Plant").

b) At all material times the defendant owned and operated a 'GEC Avery' weighbridge ("the weighbridge") and associated computer ("the weighbridge computer") installed at the Horsley Park Manufacturing Plant.

c) At all material times the defendant carried on the business of manufacturing building materials trading as 'PGH Bricks & Pavers' from the Horsley Park Manufacturing Plant and employed persons in the conduct of that business.

d) At all material times Mulgoa Quarries Pty Limited employed William Besant as a truck driver responsible for the haulage of quarry products.

e) At all material times drivers employed by Mulgoa Quarries Pty Limited transported raw materials to the Horsley Park Manufacturing Plant in accordance with the contract between Monier PGH Holdings Limited and Mulgoa Quarries Pty Limited. f) At all material times the defendant, in accordance with the contract between Monier PGH Holdings Limited and Mulgoa Quarries Pty Limited, required drivers in the employ of Mulgoa Quarries Pty Limited to weigh their vehicles and cargo upon the weighbridge and cause a computer generated delivery docket to be produced in the course of effecting the delivery of raw materials to the Horsley Park Manufacturing Plant. g) At all material times drivers employed by Mulgoa Quarries Pty Limited were required to move between the weighbridge and weighbridge computer in order to cause a computer generated delivery docket to be produced.

h) At all material times persons not in the defendants employment, and in particular William Besant, were exposed to risks to their health and safety arising from the conduct of the defendants undertaking while they were at the defendants place of work. In particular, there was a risk of drivers slipping and/or falling when gaining access to and egress from the weighbridge computer.

i) At all material times the defendant failed to implement adequate measures to ensure drivers employed by Mulgoa Quarries Pty Limited did not use the steel beam and square steel supporting post fixed to the steel beam and concrete walkway as a means of access to and egress from the weighbridge computer.

6 The first and second defendants pleaded guilty to the amended charges. Statements of agreed facts were tendered. It is unnecessary to refer to the whole of the statements. The agreed facts provided the following relevant information: 14 The weighbridge at the Horsley Park Manufacturing Plant was used to weigh vehicles and their cargo as they entered the Plant. The weighbridge was located within the Plant approximately 50 metres from the entrance. An inclined ramp provided vehicular access to the flat surface of the weighbridge. The flat surface of the weighbridge measured approximately 18 metres in length and 3.5 metres in width. Steel anti-crash barriers ("steel beams") measuring approximately 210 millimetres in width ran the length of the flat surface of the weighbridge on each side. A concrete walkway, extending the length of the weighbridge, was located adjacent and parallel to one side of the weighbridge. The weighbridge computer was located at a point approximately halfway along the length of the concrete walkway. The concrete walkway was at a level approximately 840 millimetres lower than the top of the adjacent steel beam. A square steel supporting post was fixed to the steel beam and concrete walkway in the vicinity of the weighbridge computer. A set of stairs were located at each end of the weighbridge and provided access to the concrete walkway below. The side of the weighbridge adjacent to the weighbridge computer was not provided with guardrailing or other means to prevent persons falling from the flat surface of the weighbridge or the steel beam to the concrete walkway below. The other side of the weighbridge, however, was provided with guardrailing. Slip-resistant tape was fixed to the steel beam adjacent to the concrete walkway and the square steel supporting post in the vicinity of the weighbridge computer.

15 The weighbridge computer was provided with an aluminum platform suspended above the ground and designed to facilitate drivers' use of the computer.

16 Immediately preceding the accident Besant was observed by Steven Langlands, also employed as a truck driver by Mulgoa Quarries Pty Limited, to cause his prime mover to ascend the inclined ramp leading to the flat surface of the weighbridge and stop the vehicle upon the flat surface of the weighbridge. Thereafter, Besant alighted from his vehicle and walked upon that 210 millimetre wide steel beam adjacent to the concrete walkway in the direction of the weighbridge computer. When Besant was at a point approximately 3 steps from the square steel supporting post fixed to the steel beam and concrete walkway Langlands attention was diverted away from Besant while Langlands attended to some paper work. . When Langlands next returned his attention to Besant he observed him (Besant) to be lying motionless on the concrete walkway with blood coming from his head and left ear. There were no other witnesses to the events immediately leading to the injuries of Besant.

17 CSR Limited had operated the weighbridge at the Horsley Park Manufacturing Plant since approximately 1995 and the defendant had supplied and delivered materials to that Plant from some time in 1996. The side of the weighbridge adjacent to the weighbridge computer had at no time been provided with guardrailing or other means to prevent persons falling from the flat surface of the weighbridge or the steel beam to the concrete walkway below. Approximately 4 years prior to the date of the incident slip-resistant paint was applied to the steel beam as a result of complaints made by drivers as to the steel beam being slippery when wet. Prior to May 2000, there is no indication of any prior incident involving any driver slipping off the steel beam. In 1995, there was a slip on the weighbridge. In late April 2000 Besant made a similar complaint regarding the steel beam and, as a result, as at the date of the accident the slip-resistant paint had been replaced by slip-resistant tape affixed to both the top of the steel beam and the top of the square steel supporting post. Besant and Dominic Gauci from CSR both reported this to Ian John Forrest, the Defendant's allocator supervisor. In addition, the drivers indicated to Forrest that they were reasonably happy with the slip resistant tape which had been affixed to the top of the steel beam.

19 Drivers, including Besant, devised and adopted a practice whereby they alighted from their vehicle, walked along the 210 millimetre wide steel beam that ran parallel and adjacent to the concrete walkway, stepped down from the steel beam onto the square steel supporting post and then either stepped down from the square steel supporting post to the concrete walkway before stepping up and onto the aluminum platform attached to the weighbridge computer or stepped directly from the square steel supporting post to the aluminum platform attached to the weighbridge computer. Whilst stepping from the steel beam onto the square steel support and the aluminium platform they could hold onto the surround of the weighbridge computer. The same or similar path was taken when returning from the weighbridge computer to the vehicle. The practice provided the most direct means of access to the weighbridge computer from the cabin of a vehicle parked on the weighbridge and was the procedure implemented by Besant as at the date of the incident. 20 As at the date of the incident Howard Hill was employed by the defendant as the Transport Manager. Three years prior to the date of the incident Hill was otherwise employed. In the course of that other employment Hill was responsible for the provision of driver training. At that time Hill provided driver training to persons including drivers then in the employ of the defendant. The content of that training, however, did not specifically address work activities associated with weighbridges. Besant himself had provided instruction in the operation of the weighbridge computer, in so far as causing the production of a computer generated delivery docket was concerned, to less experienced drivers. However, no instruction was provided to new drivers regarding appropriate means of gaining access to and egress from the weighbridge computer. Instead, less experienced drivers followed the method they observed implemented by the more experienced drivers such as Besant.

21 The weighbridge was not manned thereby giving rise to the need for drivers to alight from their vehicles parked on the weighbridge and gain access to the weighbridge computer.

Between 20 April and 26 April 2000 Besant informed Ian Forrest, employed by the defendant as a supervisor, that the steel beam was slippery when wet with dew early in the mornings.

22 In late April or early May 2000 both Besant and Forrest informed Dominic Gauci, employed by CSR Limited as a supervisor at the Horsley park plant, that the steel beam was slippery. When informed by Besant of the slip hazard, Gauci advised Besant not to walk on the steel beam and instructed Kirsty Green, employed by the CSR Limited at the Horsley Park plant as a dispatch clerk, to order some slip-resistant tape. Gauci's purpose in requiring the order of slip-resistant tape was that, in the event drivers did walk on the steel beam, the steel beam would not be as slippery. Green, within days, fixed slip-resistant tape along the steel beam and the square steel supporting post being the areas where she knew drivers to walk.

23 There was available alternate means by which drivers could reach the weighbridge computer from their vehicles stationed upon the weighbridge. Those means involved drivers alighting their vehicles, walking upon the flat surface of the weighbridge to either set of stairs located at each end of the weighbridge, descending those stairs to the concrete walkway situated below the weighbridge and walking along the walkway to the weighbridge computer. When a vehicle such as that driven by Besant on the date of the incident was parked centrally on the weighbridge there existed a clearance of approximately 540 millimetres between a vehicle and the steel beam in which a driver could manouvre (sic) along the flat surface of the weighbridge.

24 As at the date of the incident involving Besant CSR Limited operated numerous weighbridges at other plants that, unlike the weighbridge at the Horsley Park Manufacturing Plant, were positioned at ground level.

25 As at the date of the incident involving Besant CSR Limited also operated weighbridges at other plants that were positioned above ground level including a plant at Schofields. The weighbridge at Schofields differed from that at Horsley Park in that it was provided with platforms incorporating guardrailing mounted to its sides.

26 Subsequent to the accident the defendant caused the following remedial measures to be implemented: (a) CSR Limited devised an interim procedure whereby an employee of the CSR Limited, delegated the task of weighbridge operator, manned the weighbridge and operated the weighbridge computer alleviating the need for drivers to alight from their vehicles whilst on the weighbridge for that purpose. Consultation between the defendant and CSR Limited with regard to the interim procedure was undertaken before being approved and reduced to writing; and (b) the defendant provided instruction and training in the devised procedure to employees.

30(sic) On 15 May 2000 an autopsy was performed on the dead body of Besant at Westmead Hospital, Department of Forensic Medicine, by Dr Bogdan Hulewicz. In Dr Hulewicz' Forensic Medicine Final Report dated 16 June, 2000 he made the following comments: "Death was due to head injury including a skull fracture and brain contusions. The pattern of brain injury was consistent with a moving head striking a fixed object/surface as seen in a fall onto the back of the head. The autopsy examination also disclosed severe heart disease including enlargement of the heart and degenerative narrowing of the coronary blood vessels. This could have caused the deceased to collapse and strike his head."

31 The defendant's failure was the failure to implement adequate measures to ensure employees did not use the steel beam and square steel supporting post fixed to the steel beam and concrete walkway as a means of access to and egress from the weighbridge computer. 7 The agreed statement of facts in relation to the second defendant was similar in terms to that relating to the first defendant. Relevant substantive differences were as follows: 20 There was available alternate means by which drivers could reach the weighbridge computer from their vehicles stationed upon the weighbridge. Those means involved drivers alighting their vehicles, walking upon the flat surface of the weighbridge to either set of stairs located at each end of the weighbridge, descending those stairs to the concrete walkway situated below the weighbridge and walking along the walkway to the weighbridge computer. When a vehicle such as that driven by Besant on the date of the incident was parked centrally on the weighbridge there existed a clearance of approximately 540 millimetres between a vehicle and the steel beam in which a driver could manouvre (sic) along the flat surface of the weighbridge. So far as Besant was concerned, his ability to manouvere (sic) between a parked vehicle and the steel beam was further restricted as a result of his relatively large size (approximately 139 kilograms in weight). … 23. Subsequent to the incident the defendant undertook a comprehensive investigation culminating in a written report and recommendations and caused the following remedial measures to be implemented: (a) signage prohibiting drivers walking along steel beams and requiring drivers walk along the flat surface of the weighbridge were affixed to both the weighbridge and weighbridge computer; (b) an interim procedure was devised whereby an employee of the defendant, delegated the task of weighbridge operator, manned the weighbridge and operated the weighbridge computer alleviating the need for drivers to alight from their vehicles whilst on the weighbridge for that purpose. Consultation with Mulgoa Quarries Pty Limited with regard to the interim procedure was undertaken before being approved and reduced to writing; (c) the aluminium platform attached to the weighbridge computer was removed; and (d) platforms incorporating guardrailing were fitted to both sides of the weighbridge at Horsley Park.

8 The first defendant tendered an affidavit of Robert John Wearn, its managing director. Mr Wearn was not required for cross-examination. Mr Wearn's evidence went to the following matters: a. The nature of the first defendant's business, which is quarrying, bulk haulage and plant hire. The company employs approximately 50 employees and made a net profit of $442,000 in 2003 b. The close relationship with Mr Besant and the long service Mr Besant had provided to the first defendant. c. The assistance provided to Mr Besant's family following the accident. d. The engagement of a consultant in 1997 to assist in formulating an occupational health and safety policy and regular reviews of that policy up until May 2000. e. Prior to May 2000 there had been no report of any incident at the Horsley Park weighbridge involving an employee of the first defendant. In late April 2000 Mr Besant had pointed out to CSR that the rail on the weighbridge was slippery when morning dew was on it. CSR had place slip resistant tape on the rail. f. Following Mr Besant's death a complete overhaul of safety systems was ordered. A risk management consultant was engaged to recommend any upgrade or overhaul of the systems. The consultant recommended, and the first defendant adopted, a system of regular safety audits. Thereby the first defendant qualified for the premium discount workers compensation scheme in 2000/2001. g. A rigid system of reporting and documentation of safety meetings, issues and events is now in place. A range of other measures has been taken to ensure safety.

9 The second defendant tendered two affidavits, the first from Andrew Gauci, the second defendant's operations manager at its Horsley Park plant and the second from Debbie Schroeder, the second defendant's national workers compensation manager. Neither deponent was required for cross-examination. Mr Gauci's affidavit went to the following matters: 1. His personal experience, training and responsibilities, which included the following: a. Taking overall responsibility for the site's compliance with legislative & CSR's requirements. b. Knowing the safety requirements for the site & ensuring they are met as well as actively ensuring that the site strives to eliminate any injuries or environmental incidents. c. Achieve operating costs targets each year as well as the working capital targets. d. Track the key quality drivers and ensure the product is within the agreed tolerances & meets the legislative/targeted performance standards. e. Participate in new product & customer development. 2. The nature of the second defendant's operations, which was the manufacture of clay bricks and pavers. 3. Expenditure on safety. Dedicated safety expenditure at Horsley Park for 2002-2003 was $160,000.00. This included an amount of $140,000.00 from the plant budget, and a safety allocation from PGH capital expenditure of $20,000.00. The plant OHS committee determines how these funds are directed. Other safety expenditure is likely to be in the vicinity of $150,000.00 . This amount varies from year to year. 4. Occupational health and safety policy at the Horsley Park plant including the conduct of safety audits. 5. Circumstances surrounding the death of Mr Besant. In this respect Mr Gauci deposed: Trucks of varying lengths use the weighbridge at Horsley Park. As such they come to a stop at different points along the weighbridge. To remove the risk of slipping by truck drivers when they dismounted from their truck non slip tape was applied to a section of the steel beam to accommodate all of the trucks. CSR were aware prior to the accident that some drivers had traversed the beam to gain access to the weighbridge computer. The company required persons to use the stairs. Truck drivers who were observed to traverse the beam were told not to do so by management. The location of the weighbridge computer in relation to the office meant that the drivers were obscured from the vision of CSR employees when they dismounted from their truck. Observations of truck drivers only occurred when employees of CSR were going to or from the employee carpark Whilst CSR had determined that truck drivers were required to use the stairs the risk which was identified was very low in relation to injury. The height of the weighbridge is similar if not less than the height of many retaining walls. The height is also lees than that encountered by truck drivers dismounting from their trucks. 6. Remedial action taken by the second defendant. The weighbridge was initially taken out of service then redesigned. 7. CSR deeply regrets the incident that occurred. 8. CSR has in accordance with its usual policy endeavoured to co-operate with the WorkCover Authority throughout the investigation of the incident and subsequently.

10 Ms Schroeder's affidavit went to a number of relevant issues including the following: 1. Her personal background. She has held position of national workers compensation manager since 1 April 2003. Prior to that she held the position of technical manager, CSR national workers compensation team.

CSR's business operations. CSR's safety structure whereby CSR publishes policies and procedures in respect of safety, which it requires to be implemented across all business units.

CSR's occupational health and safety standards based on Australian and International Standards. The Standard was developed in accordance with Occupational Health and Safety Standards and self-insurance requirements and provides a comprehensive framework for the identification, assessment and control of risks. The Standard outlines the fundamental SHE requirements which all Business Units of CSR are required to meet. It is a comprehensive approach to the identification, assessment and control of those risks which have the potential for adverse impact on performance at all CSR sites.

The Standard currently applies to all CSR Business Units, and has been ratified by the Chief Executive of each business unit. Each General Manager is responsible for implementing the Standard throughout their Business Unit and has been instructed to do so by the Managing Director of CSR. The businesses are therefore responsible for the implementation of the Standard including procedures, work instructions and training. Performance is monitored by management of the business operations, senior management and the Board through the Board SHE Committee, Management Meetings and Audits.

CSR provides extensive occupational health and safety training to employees and contractors. In dealing specifically with contractors, management of all CSR sites are required to specify in the terms of the contract the need to provide the following: (a) Safe work method statements; (b) Documentary proof of hazard identification and risk management procedures; (c) Identification to the contractor by CSR of site specific hazards and control measures; (d) Active management of contract activities by the CSR manager responsible for the contract to ensure compliance with SHE requirements; (e) Ensuring persons providing contract services are adequately trained and licensed for the tasks they are to perform.

In 2002 CSR undertook a comprehensive review of the management of all contractors on site. CSR now has in place procedures for the induction and management of contractors whilst on site as well as processes for ensuring contractors are appropriately skilled and qualified when attending site.

11 Dr Bogdan Hulewicz was called for cross-examination. Dr Hulewicz is a qualified medical practitioner who carried out the autopsy on Mr Besant. His findings are contained in the agreed statement of facts. Dr Hulewicz was asked some questions about whether there were any marks on Mr Besant's body consistent with him attempting to break his fall. Dr Hulewicz indicated there were no such marks. He agreed that if a person was falling backwards it was less likely there would be marks on the body indicating an attempt to break a fall than if the person had fell forward.

12 Dealing firstly with the first defendant, the risk identified in the amended charge was that of employees slipping and/or falling when gaining access to and egress from the weighbridge computer at the second defendant's Horsley Park plant. The charge alleged that the defendant failed to implement adequate measures to ensure employees did not use the steel beam and square steel supporting post fixed to the steel beam and concrete walkway as a means of access to and egress from the weighbridge computer. The maximum penalty in this case is $550,000.

13 The first defendant has acknowledged its failure to ensure the health and safety of employees, in particular Mr Besant, through its plea of guilty. The first defendant submitted, however, that in considering the gravity of the offence, in light of Dr Hulewicz's finding that the condition of Mr Besant's heart "could have caused the deceased to collapse and strike his head", the Court should not take into account the fact of Mr Besant's death. Mr D O'Neil of counsel for the first defendant referred to the prosecutor's submission that: A sentencing judge may not take facts into account which are adverse to a defendant unless those facts have been proved beyond reasonable doubt. Where a defendant seeks to have matters taken into account in its favour on sentence those matters must be proved on balance of probabilities.

14 Mr O'Neil also referred to the fact that in amending the charge the prosecutor had withdrawn the particular that "William Besant sustained fatal head injuries when he slipped and/or fell and struck his head on the concrete walkway …" It was submitted for the first defendant that when the Court takes out of account the death of Mr Besant it is left with assessing a risk to safety "created by employees walking along the 210 millimetre guard rail raised 840 millimetres above the footpath" in circumstances where the relevant regulation only requires fall protection to be provided at a height of 1.5 metres or more.

15 As the Full Bench observed in the recent judgment of Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32]: 32 In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

16 In light of Dr Hulewicz's observations that Mr Besant's death could have been caused other than by a failure on the part of the first defendant, there is reasonable doubt in this respect. Consequently, in assessing the degree of seriousness of the risk I do not propose to take into account the death of Mr Besant, tragic though it was.

17 In assessing the nature and quality of an offence the Court is entitled to have regard to whether there was a reasonably foreseeable risk of injury. If so, the offence will be more serious in nature: Capral Aluminium Limited v WorkCover Authority (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 at 62. Ms A F Backman of counsel for the prosecutor submitted that the first defendant was aware of the practice of drivers walking the most direct route from their vehicles parked on the weighbridge to the weighbridge computer. This route involved walking along the steel beam, which ran the full length of the weighbridge, onto a square post and then onto a concrete walkway that was adjacent to and 840mm below the weighbridge. Ms Backman submitted the first defendant was aware of the risk presented by walking on the steel beam when it was slippery. She also submitted the risk was obvious.

18 On the question of foreseeability, Mr O'Neil submitted: · Prior to the incident there had been no reports of any incident involving a fall from the steel beam. · When Mr Besant complained of slipperiness in April 2000 discussions were held with CSR who attended to the problem by applying slip-resistant tape. · Safety experts engaged by the first defendant had not detected the risk of employees slipping off the steel beam. · Drivers alighting from their vehicles and walking along the steel beam had the ability to hold onto their vehicle for support thus reducing the risk of falling and making it less foreseeable that someone could fall. 19 Mr O'Neil submitted that the risk in falling from the steel beam involved only "mild to moderate injury and limited foreseeability."

20 In my opinion, the first defendant was undoubtedly aware of the risk to injury of falling from the steel beam or the square steel supporting post. The practice of allowing drivers to walk along a relatively narrow 210 mm steel beam without any guardrails and then to step down onto a steel post in order to get to a concrete walkway 840 mm below the weighbridge was an obvious and inherently unsafe practice with the likely consequence that someone who did slip would inevitably sustain an injury. The practice, in my opinion, could only have been made marginally safer by the application of slip resistant tape. In this respect, I note that the tape was applied so that the steel beam "would not be as slippery". And, of course, the application of the tape could only have had the result of inviting drivers to continue the practice.

21 With respect to the availability of simple and straightforward steps to remedy the defect Ms Backman submitted it was open to the defendants at any time prior to the accident to, for example, take appropriate steps to incorporate guardrails on the weighbridge. Such measures were in force prior to the accident at other plants operated by CSR such as the weighbridge at its Schofield plant. In relation to the first defendant, whilst it would not have been open to it to unilaterally erect the guardrails, there was an obligation on that defendant to direct its employees not to walk along the steel beam and to ensure that direction was followed. I note, in this respect, there was an available alternative means of accessing the computer that avoided having to walk on the steel beam.

22 In accordance with the Full Bench judgment in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; (2000) 99 IR 29 I have taken into account the need for general deterrence. In relation to specific deterrence, whilst it is a matter I should take into account I must also have regard to the propensity for the first defendant to re-offend. Having regard to its previous good record, the measures taken by the first defendant to avoid a recurrence of the incident and to the improvements generally to occupational health and safety policies and practices, I consider the likelihood of the defendant re-offending is slight.

23 The first defendant has no previous convictions. It may be said that given the nature of the business carried on by the first defendant over a long period of time that it has a good safety record. Further, the prosecutor concedes that the first defendant is entitled to a 25 per cent discount on any penalty for the utilitarian value of an early guilty plea. By way of subjective factors I have also taken into account the measures taken by the defendant following the incident and its approach to occupational health and safety. I have also taken into account the commendable assistance provided by the first defendant to Mr Besant's family.

24 I turn to consider the second defendant. Although the second defendant was charged under a different section of the Act to that which applied to the first defendant, the risk identified in the amended charge and the nature of the failure of the second defendant are essentially the same as those alleged against the first defendant. As with the first defendant, in assessing the degree of seriousness of the risk in the case of the second defendant I do not propose to take into account the death of Mr Besant. The maximum penalty in the case of the second defendant, in light of previous convictions, is $825,000.

25 As to foreseeability and the availability of steps to remedy the defect giving rise to the risk, I take the same position as that expressed in relation to the first defendant. The complications arising from the Trade Measurement Act 1989 and referred to by Mr M Shume of counsel for the second defendant regarding the modification of the weighbridge are, in my opinion, of no consequence. If difficulties arise in modifying a structure that presents a risk to safety the answer is, in light of the absolute duty cast upon employers to ensure safety, not to use the structure or to take all reasonably practicable steps to eliminate the risk.

26 I also take the same position with the second defendant in relation to general deterrence as I have with the first defendant. As to specific deterrence, the second defendant is a very large organisation and it might be contended that because of the spread of its industrial activities and its record of prior convictions, in particular those relating to its PGH division, that any penalty should reflect a strong element of specific deterrence. However, one has to have regard to the second defendant's policies, programs and practices regarding occupational health and safety. I consider these to be of a high standard. One also must have regard to the measures taken by the second defendant following the incident in May 2000 to avoid a recurrence of the risk. In fixing the penalty I have sought to bring these factors into proper balance.

27 The second defendant pleaded guilty at an early stage and is entitled to a discount on the penalty of 25 per cent. The remedial measures taken by the second defendant following the incident and the second defendant's positive approach to occupational health and safety call for a more lenient penalty than otherwise might be the case.

28 The nature and quality of the offences committed by the defendants in these proceedings is such that they should not attract severe penalties given that I have excluded from my consideration the death of Mr Besant for the reasons earlier given. The risks created by the failure to take appropriate steps to prevent persons using the steel beam and support post in gaining access to and egress from the weighbridge computer were, nevertheless, obvious risks known to the defendants and the risks were easily avoidable.

29 I have had regard to the need for consistency in sentencing given that the same circumstances have given rise to the two prosecutions: see Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 325 at 340-341; Capral Aluminium 99 IR at 56-58.

30 In relation to the first defendant I have determined that a penalty of $60,000 should apply. This should be discounted for the subjective factors, including the early plea of guilty, by 35 per cent. That results in a fine of $39,000.

31 In relation to the second defendant I have determined that a penalty of $68,000. This should be discounted for the subjective factors, including the early plea of guilty, by 35 per cent. That results in a fine of $44,200.

32 The Court makes the following orders: Matter No IRC 2622 of 2002 Mulgoa Quarries Pty Limited : 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $39,000 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. Matter No IRC 2623 of 2002 CSR Limited : 1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $44,200 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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