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[2011] NSWIRComm 98
Industrial Relations Commission (NSW)
2011-06-08
Kavanagh J, Schmidt J
Original judgment source is linked above.
Judgment 1This prosecution is brought by Inspector Madeline Christensen of the WorkCover Authority of New South Wales against Universal Cranes Pty Ltd ("the defendant") under s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"), by way of an amended Application for Order. 2It is alleged the defendant, on 15 November 2008, contravened s 8(2) of the Act in that it failed to: ensure, by its acts or omissions as particularised below, that persons other than Universal Cranes' employees, and in particular, Darren Mitchell were not exposed to risks to their health or safety arising from the conduct of Universal Cranes' undertaking while they were at Universal Cranes' place of work, contrary to section 8(2) of the Act. In particular: (a) The 'work' referred to in these particulars and in the charge refers to the work of transporting a load of concrete bridge girders from the site to Brisbane, Queensland, using a prime mover truck ('prime mover') and attached 16 wheel dolly trailer unit ('dolly') and 32 wheel jinker trailer unit registration number QLD 998-QJX ('jinker') (collectively the prime mover, jinker and dolly are referred to herein as 'the plant'); (b) The 'risk' referred to in these particulars and in the charge is the risk of people working at the site being struck or run over by the plant or any part of it; (c) Mr Smith was a Director Universal Cranes at all material times; (d) Universal Cranes did not ensure that a risk assessment was undertaken for the work that identified the risk and the means by which it could be eliminated or controlled; (e) Universal Cranes did not ensure that a dedicated spotter or observer was in place at all times to coordinate and monitor the safe movements of the plant and people working at the site; (f) Universal Cranes did not ensure that wheel guards were fitted to the jinker so as to minimise the possibility of people working at the site coming into direct contact with the wheels of the jinker or accessing components of the jinker from behind or between its rear wheels; (g) Universal Cranes did not ensure that a site specific safe work method statement or safe work procedures were implemented for the work at the site which required that: (i) a job safety analysis be undertaken prior to the commencement of work; (ii) the movements of the prime mover, jinker and people working near the plant were planned and coordinated; (iii) a safe distance was maintained at all times between the plant and people working at the site; (iv) a spotter or observer was in place at the site to coordi9nate and monitor the safe movements of the plant and people working at the site; (v) all persons working at the site wore high visibility personal protective gear; (vi) specific communication protocols, such as the use of two-way radios, were implemented so as to ensure that people working at the site were aware of the movements of the plant and people working near the plant; (vii) in the event of a mechanical or technical fault, emergency procedures were to be implemented which prohibited the work from continuing until such time the mechanical or technical fault had been repaired by a competent person and a tool box talk was attended by all people working at the site before the work recommenced. (h) Universal Cranes did not ensure that people working at the site were provided with a site specific induction, toolbox meeting or training at which they were told about all of the matters referred to in (k) and: (i) the nature of the identified risk and the control measures required to be implemented at the site so as to eliminate or control the risk. (ii) what experience was held by people working at the site and, in particular, what experience was held by the drivers, steerers and operators of the plant. As a result of Universal Cranes' acts and omissions as particularised above people (other than its employees) working at the site were exposed to the risk of being struck by plant at the site. Darren Mitchell's death was a manifestation of that risk. 3The defendant pleads guilty to the charge. 4Mr R Reitano, of counsel, appeared for the prosecution and Mr R Devlin, SC with Mr D Jordan, of counsel, appeared for the defendant. The prosecutor relied upon an amended Application for Order filed 11 March 2011; Agreed Statement of Facts; Factual Inspection Report dated 18 November 2008 of Inspector Hugh Corner; Photographs; Investigation Report commissioned by Universal Cranes Pty Ltd; and the industrial record of company. A Victim's Impact Statement was also tendered. 5The defendant relied upon an affidavit of Albert Smith sworn 2 June 2011 (as amended) with attachments including a DVD showing work on a rigger. 6There was an Agreed Statement of Facts which relevantly reads: 2. The Department of Main Roads Queensland contracted the Northern Busways Alliance ('NBA') to construct the Northern Busway from the Brisbane Royal Children's Hospital to Windsor on behalf of Translink. NBA is an alliance between the Department of Main Roads, QLD SMEC Holdings Pty Ltd and Abigroup Contractors Pty Ltd, ACN 000 201 516 ('Abigroup'). 3. In May 2008, Abigroup, on behalf of NBA, entered into an agreement with APS to manufacture and supply concrete bridge girders loaded onto trucks to be supplied by NBA at the precast manufacture premises. 4. NBA contracted Rex J. Andrews Pty Ltd, ACN 003 839 718 ('Rex J Andrews") and LCR Lindores Group Pty Ltd, ACN 095 626 798 ('Lindores') to transport concrete bridge girders manufactured at the premises to Brisbane. There were two separate contracts - one between NBA and Rex J Andrews and one between NBA and Lindores. Lindores in turn engaged Universal Cranes Pty Ltd, ACN 106 296 799 ('Universal Cranes') a Queensland company, to provide two trucks with dollies and jinkers and two drivers to complete the NBA/Lindores contract. 5. Universal Cranes is a 100% subsidiary of Albert Smith (Industries) Pty Ltd, ACN 116 627 840 ('Albert Smith Industries'). Mr Smith is a director of Universal Cranes and Albert Smith Industries. Mr Smith's role was to control overall policy, recruitment and training of senior staff. Mr Smith was responsible for most of the procurement of equipment and the development of management systems. 6. Universal Cranes engaged TLS Haulage Pty Ltd, ACN 131 907 563 ('TLS Haulage') and DHM Haulage Investments Pty Ltd, ACN 123 743 135 ("DHM") to provide a prime mover and a driver to transport a concrete bridge girder to Brisbane. 7. Universal Cranes previously employed both Mr Mitchell and Mr Sanders. DHM and TLS Haulage are dedicated sub-contractors to Universal Cranes. DHM and TLS Haulage only work for Universal Cranes. Troy Sanders is a director of TLS Haulage. Mr Mitchell and his wife, Helen Fisher were the two directors of DHM. Troy Sanders was the only shareholder of TLS Haulage. Mr Mitchell and his wife were the only shareholders of DHM. 8. Lindores also engaged Barb Perreau Pty Ltd, trading as First Choice Pilots, to provide steering and pilot services associated with the transport of the girders. First Choice Pilots engaged Terry Leslie, trading as Colossal Pilot Service, to steer the jinkers and provide a pilot service. 9. The NSW Police were engaged by Lindores on a 'fee for service' basis to escort the loads to the NSW Border. 10. In relation to the job at the premises, Mac Pera, Operations Manager employed by Universal Cranes, quoted the job initially on the basis that Universal Cranes would supply its own steerers. Lindores twice refused Universal's request to use their own steerers. Pera ultimately provided a quote for the job without steerers, which was accepted. Mark Happer, General Manager employed by Universal Cranes, approved the jinker and prime mover to do the job without their own steerer. Plant and Equipment 11. The concrete bridge girder involved in the incident referred to below weighed 67 tonne and was 34 metres long. Due to the size of the bridge girders they were transported using a prime mover, dolly and jinker. The bridge girders were supported on a widening dolly behind the prime mover and a widening jinker at the rear end of the girder. 12. The prime mover involved in the incident was a Kenworth manufactured unit, registration number QLD 443-LBX ('prime mover'). TLS Haulage owned the prime mover. The prime mover was operated by TLS Haulage's director, Troy Sanders. A 'jinker' or 'rear steer trailer' is an axle group which is built to support part of a load and is connected to a vehicle in front of it by a pole or the load itself. The jinker involved in the incident was a 32-wheel heavy-duty unit, registration number QLD 998-QJX ('jinker'). Universal Cranes owned the jinker. The jinker could be independently steered to assist in the turning circle of the whole assembly. The jinker did not have mudguards fitted over the wheels. The dolly involved in the incident was also owned by Universal Cranes. Detail of the Incident 13. On 13 November 2008, Mr Mitchell range LCR Lindores and requested that they use a person to act as a steerer employed by Universal Cranes to assist in transporting the concrete bridge girders to Brisbane. LCR Lindores refused the request. Mr Mitchell wanted to use a Universal Crane steerer as he had previously been involved in an incident in August 2007 that involved a steerer provided by LCR Lindores. On that occasion, one of the jinker wheels ran off the asphalt and caused the prime mover and front dolly to overturn. 14. On the afternoon of 14 November 2008, the four truck drivers - Mr Mitchell, Mr Sanders, Mr Kevin Norman (employed by Kiti Transport Pty Ltd, engaged by Rex J Andrews) and Mr Brett Viewey (employed by Marex Pty Ltd, engaged by Rex J Andrews) arrived at the premises with the plant. Mr Mitchell and Mr Sanders were given an induction to the premises by APC. The four drivers spent several hours setting up the plant and loading the concrete bridge girders in preparation for the transport that was to occur the following day. Given the length of the beam, the air brake hoses on Mr Sanders' plant had to be extended. Mr Sanders had not previously transported a beam as long as the beam that he was to transport on the day of the incident. Mr Mitchell showed Troy Sanders how to fit the hose extensions while they were setting up the plant for loading. After they finished setting up and loading the trucks, Messrs Mitchell and Sanders slept in the trucks. Mr Viewey and Mr Norman slept off site. 15. On the morning of 15 November 2008, Messrs Mitchell, Sanders, Viewey and Norman met at the premises and checked the plant. 16. At approximately 6:30am to 6:45, the two steerers, Mr Terry Leslie and Mr Alfred Norman, arrived at the premises. Mr Leslie was the steerer of the Universal Cranes plant and Mr Norman was the steerer of the Rex J Andrews plant. Mr Leslie and Mr Norman were not inducted to the premises by APC. 17. At approximately 6:45am to 7:00am, four NSW police officers - Sergeant David Williams, Senior Constable Glen Ellem, Senior Constable Wayne Lollback and Senior Constable John Ferris - arrived at the premises and carried out their checks of the permits and licences on the plant and their loads. 18. Mr Leslie, Mr Mitchell and Mr Sanders discussed the order that the plant would travel in. It was decided that Mr Sanders would leave first due to the position of his prime mover in relation to the other prime movers. 19. After the police officers had completed their checks, the officers discussed the order they would take in escorting the plant. It was decided that Senior Constable Ferris would lead, followed by Senior Constable Ellem as second, Sergeant Williams as third and Senior Constable Lollback as fourth. The police officers then parked their police vehicles in the order of the escort. 20. Mr Sanders got into his truck to move out first. However, the brakes on the jinker failed to release. Mr Mitchell came over to assist and released the brakes by pushing the yard release button on the left hand side of the jinker. Once the brakes released, Mr Sanders got into the prime mover and tested the brakes by activating the lever on the right hand side of the steering wheel that applied the brakes to the jinker and the dolly. Once the brakes were tested, Mr Sanders started to drive the plant out of the yard at as 'walking pace'. 21. As Mr Sanders was making his way out of the premises, he rang Mr Mitchell and asked him to stay with the jinker at the rear until he had passed a difficult sharp left hand turn on the road ahead as he didn't want to hit the chassis rail of the truck onto the chassis rail of the dolly. Mr Leslie took his position behind the jinker and tried to use the remote control to steer the jinker. Mr Mitchell was also walking behind the jinker. 22. The remote control for the jinker was not working so Mr Mitchell tried to fix the remote while Mr Leslie used the manual controls for the jinker to steer out of the yard. Mr Mitchell was walking beside Mr Leslie as the plant came out onto the road and turned to the left. 23. Mr Sanders got a radio communication from Mr Leslie saying that the jinker was coming out of the yard onto the road. At that stage, Mr Sanders looked into his left hand side mirror and saw Mr Leslie and Mr Mitchell walking behind the jinker. 24. Mr Leslie was concentrating on the left hand side as there were obstacles present, such as the police vehicles. As they were getting closer to the two police vehicles, Mr Mitchell told Mr Leslie that he could not get the remote control to work. 25. Mr Mitchell approached Senior Constable Lollback, who was standing outside his vehicle on the northern kerb, and told him that the remote control for the jinker would not work. Mr Mitchell then walked towards the rear of the jinker, which was moving in an easterly direction, and placed the remote control into the basket at the rear of the jinker. 26. Mr Mitchell then walked to the right hand (driver's) side of the jinker. Mr Sanders and Mr Leslie did not know that Mr Mitchell was on the right hand side of the jinker. As the prime mover came up to the second police car, Sergeant Williams and Senior Constable Ellem saw Mr Mitchell walk under the concrete beam and in front of the jinker. Sergeant Williams observed Mr Mitchell standing on his toes and reaching across the wheels to adjust a black cable underneath the concrete beam. Sergeant Williams and Senior Constable Ellem saw Mr Mitchell's left foot get caught under the fourth wheel from the outside and then saw Mr Mitchell trying to pull his foot out. Sergeant Williams immediately called out to stop. 27. Mr Leslie had still been looking down the left hand side of the plant when Sergeant Williams yelled out to stop. Mr Leslie immediately contacted Mr Sanders on the two-way radio and instructed him to stop the plant. By the time the prime mover had stopped, the wheel had run over the left hand side of Mr Mitchell's body. 28. From the time that Sergeant Williams saw Mr Mitchell's foot get caught under the wheel to the time the prime mover stopped, the plant had moved approximately 4 feet. 29. After leaving the yard, Mr Sanders had turned left, travelled approximately fifty metres and then started to turn the prime mover back around to the left hand to get onto the left hand side of the road ready to turn right when he received radio communication from Mr Leslie telling him to stop. 30. Sergeant Williams and Senior Constable Ellem ran over to assist Mr Mitchell but he had passed away. A short while later, Ambulance personnel arrived and checked Mr Mitchell but could not revive him. Mr Mitchell died at the premises on 15 November 2008 at 7:30am. 31. It is not known why Mr Mitchell walked under the concrete beam and in front of the jinker. Details of the System of Work Prior to Incident 32. After an incident in August 2007 involving Mr Mitchell and another steerer, Universal Cranes put in place a policy that they would not send out the jinker equipment without their own steerer except in special circumstances. On 15 November 2008 Universal Cranes did not provide their own steerer as LCR Lindores had declined Mr Pera's and Mr Mitchell's requests to use a Universal Cranes' steerer and insisted that Universal Cranes not supply the steerer. 33. The people involved in the transport of the concrete bridge girders consisted of: . Two truck drivers (Mr Mitchell and Mr Sanders) engaged by Universal Cranes Pty Ltd who had previously worked together; . Two truck drivers (Kevin Norman and Brett Viewey) and a steerer (Alfred Norman) who were engaged by Red J Andrews who had previously worked together. These people were not involved in the Lindores contract; . One steerer (Mr Leslie) engaged by LCR Lindores Pty Ltd to complete their contract with NBA; and . Four NSW police officers. 34. Each person had experience in the work that they were to undertake. Mitchell and Sanders had worked together many times for Universal Cranes. Leslie, the Lindores-appointed steerer was new to the group, not being a Universal Cranes employee. They had not worked together as a group prior to the incident. The men did not have the opportunity to assess each other's experience and expertise in the tasks that they were to undertake. 35. Universal Cranes did not have a supervisor present at the premises on the day of the incident because they were specifically contracted to provide only two trucks/jinkers and two drivers.. 36. Universal Cranes had an unsigned generic safe work method statement ("SWMS") for transporting bridge beams dated July 2008 that was used as a training document. Mr Sanders and Mr Mitchell did not have a copy of the SWMS with them at the premises on the date of the incident. Mr Sanders and Mr Mitchell were familiar with the contents as they had previously contributed to the development of the generic SWMS. On 1 November 2008, the Universal Cranes generic SWMS was amended to reflect the details of the work for the Northern Busway project. 37. The systems of work adopted by Universal Cranes were also used by DHM Haulage and TLS Haulage 38. Rex J Andrews had an unsigned SWMS for the loading and transporting of concrete T girders dated 16 June 2008. The Rex J Andrews SWMS was not used on the date of the incident.. 39. Prior to leaving the premises, the order in which the plant and escorts would travel in was discussed by the various parties in separate groups. There was limited discussion between all the drivers, steerers and police officers as to the precise method for moving the bridge girders safely out of the yard. 40. A risk assessment was not undertaken by the men as one group. The men relied on each other's experience and expertise to carry out the respective work tasks. 41. There was no system in place to ensure that people did not go near or under the plant when it was moving, apart from general reliance on the experience of the operators. 42. Mr Sanders and Mr Leslie used a hand held radio to communicate with each other. Mr Sanders assumed that Mr Leslie would be using the same channel as he was, that is, channel 28, as Mr Leslie was using Mr Mitchell's radio, which was always locked on channel 28. 43. Mr Sanders had approximately six months experience in operating the dolly and jinker. Although Mr Mitchell and Mr Sanders had not received formal training on the use of the dolly and jinker to transport long heavy loads, the men had received training by Rob Southerden, who is the fitter at Universal Cranes Pty Ltd and is a beam transport specialist with fifteen years experience. Mr Southerden supervised all of the earlier jobs and any particularly difficult jobs. Darren Mitchell trained Troy Sanders in the operation of the jinker and was looked upon as an experienced person concerning the use of the jinkers. 44. Terry Leslie had over fifteen years experience with steering jinkers. He is also an experienced truck driver and owned jinkers. Mr Leslie had previously steered the jinker involved in the incident a few times. The only instruction or training he had received in relation to that particular jinker was limited to what Mr Mitchell had told him, though he had a great deal of experience of other jinkers. 45. The remote control for Mr Sanders' jinker was a new remove control, which he had received the previous week and had used without problems. On the day of the incident, the remote was not working. It is not known why it was not working on that day. The remote control's storage place, when not in use, was inside the cab of the prime mover. Details of the Systems of Work after the Incident 46. After the incident, Universal Cranes engaged Ray Strohfeld, an independent mechanic, to carry out an inspection and tests on the prime mover, dolly, jinker and remove control for the jinker. Mr Strohfeld carried out an inspection on 17 November 2008 and concluded that these were all functioning properly and were in good condition. The remote control for the jinker worked properly on the day before the incident and again on 17 November 2008 when Mr Strohfeld tested it. 47. Since the incident, Universal Cranes has been working with MTE further to refine the plant design and, in particular, to establish an emergency stop mechanism. After the incident, Universal Cranes fitted mudguards over jinker wheels. 48. Universal Cranes adopted a policy that if they are not permitted to use their own steerers for jobs, they will refuse to send out their beam jinker equipment. 49. After the incident, both Universal Cranes and Rex J Andrews reviewed their SWMS's and modified them. The universal Cranes SWMS was amended and signed on 25 November 2008. The Rex J Andrews SWMS was reviewed and amended on 20 November 2008. 50. Universal Cranes undertook an investigation after the incident. An internal investigation report entitled, "Investigation report of fatal incident Macksville NSW - Australia Pre-Cast yard 15.11.2008" dated March 2009 was prepared. The report contained a section entitled 'Recommendations', which identifies ten recommendations made by the author of the report and are described as 'contributing factors' and action that should be taken by Universal Cranes in order to prevent the risk of persons being run over by the jinker. The contributing factors and recommendations identified in that report are as follows: (a) There was no protection on the wheels of the jinker, either at the front of it or behind it. Universal Cranes should fit purpose-made mudguards/bumpers to the front and rear of all jinkers; (b) There were unfamiliar site and road conditions. A site specific job safety analysis and the relevant safe work method statement should be developed and a toolbox meeting should be conducted where the safe work method statement could be discussed. (c) There were unfamiliar steerers being used and their level of experience as between each other was unknown. Universal Cranes should use its own experienced steerers; (d) Incorrect or no personal protection equipment was being worn. High visibility personal protective shirts should be worn at all times by members of the transportation crew; (e) Competency assessment forms and training records for operators of the jinker were not place. A competency assessment proforma should be developed for the jinker and all crew should be retrained into the newly developed work method statement for the "Transportation Operations of Jinkers". The training should cover, apart from general safety operating parameters: . radio and signal protocols and confirmation of communications; . emergency procedures; . no go zones and clearance areas; . never to take eyes off the load until confirmation of "load stopped" if in path of travel. (f) The safe work method statement did not include supplier generic safe work method system requirements for the particular plant in question. Universal Cranes should ensure that persons developing the safe work method statement for plant activities are trained and made aware that they must include and consider manufacturer/supplier's information and instructions when developing the safe work method statement; (g) There was no formal documented communication protocol for the use of the radio. A communications protocol for radio use should be developed which addresses the ability to accidentally change radio channels during critical communication activities and the controls required to address this matter. Ensure all relevant personnel are formally briefed and assessed as competent to operate handheld communication devices. Records of training should be documented and retained; (h) The process of stopping the prime mover with the beam attached under defined or emergency conditions were not formally identified and documented within the safe work method statement. The "Safe Work Method Statement for Transporting Bridge Beams" should include the circumstances, which would constitute the requirement to half transport activities until it is safe to recommence the move and how it is to be stopped; (i) There was no audit of the particular systems of work used once implemented in order to check their effectiveness and ongoing usefulness in operations of the kind in question. A full independent audit of all corrective actions, once implemented, should be undertaken to check their effectiveness and sustainability for future operations; (j) There was a need for general improvement of communication and emergency stopping procedures. Universal Cranes should implement communication and emergency stopping procedures, in particular the wearing of the Universal Safety Vest manufactured by MTE New Zealand by the transport crew and provide training in relation to the use of the vests to the transport crew by a qualified person. The Universal Safety Vest manufactured by MTE New Zealand are designed to transmit a radio signal when a cord attached to a receiver in the vest pocket and secured to the other side of the vest is pulled or pushed. The signal activates a safety switch which in turn activates the brakes of a trailer or truck immediately and also activates a buzzer and illuminates a light on all the vests in range warning them of the activation of a safety vest. Testing of the vest is not yet complete and it is not yet commercially available. (k) Universal Cranes cooperated with the WorkCover Authority of NSW during its investigation. (l) Universal Cranes provided a copy of its investigation report to the WorkCover Authority of NSW.
Relevant Principles 7In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(2) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]). 10The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, the Court observed at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' 11Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia : . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, ... (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) ...
Consideration 12In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): ...in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [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... 13The incident occurred when concrete bridge girders were being transported to Brisbane, Queensland using a prime mover truck, an attached 16 wheel dolly trailer unit and a 32 wheel jinker trailer. The defendant company owned the jinker and the dolly and a haulage company owned the prime mover. The steel girders were balanced across the prime mover onto the jinker. There were two drivers and two steerers for the jinker on the job assisted by police because of the width and length of the load. The police role was obviously that of handling traffic as escorts for the load. 14The two drivers were named Mr Sanders and Mr Mitchell. They worked for the haulage company. As Mr Sanders began to move the load he tested the brakes and began slowly to move out of the yard. There was a difficult sharp left-hand turn on the road ahead. Care had to be taken as he positioned the vehicle. A Mr Leslie took up his position behind the jinker and tried to use the remote control, which is needed to steer the jinker as it takes the load through angles in the road. The remote control of the jinker unfortunately was not working. Mr Mitchell, who was to be one of the drivers, was asked to try and fix the remote control. As the vehicle began the turn, it passed police vehicles. Mr Mitchell approached one of the constables and told him the remote control for the jinker would not work. Mr Mitchell was then seen to place the remote control into the basket at the rear of the jinker. The jinker, in the meantime, was being controlled manually by Mr Leslie. Mr Mitchell was then seen to walk to the right-hand side of the jinker and was then seen to reach across the wheels, apparently to adjust a cable underneath the concrete boom. Mr Mitchell's left foot was caught by a wheel and, as the vehicle was still in the movement phase, he was drawn underneath the wheels and suffered crush injuries leading to his death. 15The defendant corporation pleads guilty to a failure to ensure the task was risk assessed; failure to ensure there was a spotter on the job (as it had previously tried to arrange but proceeded without); failure to ensure wheel guards were fitted to the jinker; failure to ensure there was a specific work statement which had to include acknowledgment of "no go zones" for any person working on the task (or, as was pleaded, a safe distance was maintained at all times between plant and persons working). High visibility protective clothing was not worn by Mr Mitchell at the time. There was also a failure to ensure emergency procedures were in place if there was a circumstance such as a technical fault as occurred with the remote control. 16I am satisfied that this was a serious offence. Mr Albert Smith, the Managing Director of the defendant group of companies, has accepted the seriousness of the offence and that acknowledgment is reflected in the defendant's plea of guilty. 17The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 . On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: "... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 18A question was raised in submissions as to the foreseeability of this offence given there were a number of personnel involved including the police. Where there were employees of a number of employers and where there was no defined job specific safe work method, I am of the view the risk became not just a foreseeable risk but an obvious risk which makes the offence more serious. 19The prosecution submitted, in assessing the objective seriousness of the offence, the Court consider the simple measures that could have been put in place to ensure this work was performed safely, which measures were not costly. The availability of simple and straightforward steps to remedy the defects in the system in place is relevant to the consideration of the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). The defendant company knew of its obligations. It knew of the need for a spotter, and evidence revealed it had tried to organise one, but it failed to ensure such a step was implemented. I am satisfied there were simple steps available to ensure the safe performance of the task. 20The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 21In dealing with the issue of specific deterrence, the Court in Capral noted, at [76]: ... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ... and further: The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. and at [77]: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. 22As to specific deterrence, notwithstanding the clear expression of regret by Mr Smith who is the controlling mind of the corporation and the evidence of his determination to ensure future safe working (endeavours referred to later), there must be an element of specific deterrence to this penalty. The group operates a fleet of approximately 300 cranes and has approximately 600 full-time employees. The group is managed by Mr Smith, who has been in the crane construction business for over 20 years - the last ten years as an effective owner and managing director of the defendant corporation. The company operates in a hazardous industry performing a multitude of hazardous tasks. This is but one. The company continues to operate its dangerous equipment in the performance of various tasks in heavy industry so an element of specific deterrence is necessary. While the evidence establishes that every care was taken to protect the public, nonetheless, the basic obligation on employers under the Occupational Health and Safety Act 2000 has been breached in this incident where an employee of the haulage company was asked to do a job not his own and was not provided with the support of a spotter nor the warning as to no go zones. As a driver, he was required to perform part of a job for which he was not particularly trained. 23This Court continually sees well prepared documentation which indicates commitment from employers to the principle of safe working but those related principles need to be transposed into site specific work safe methods. This incident again requires the Court to reiterate that each particular task needs risk assessment. 24While this particular job is not a daily task, nonetheless the transporting of heavy equipment in wide and long loads is regularly seen on our roads. Employers working in this type of industry must take abundant caution - given the hazards that are faced by their employees, other workers with the necessary requisite skills and, as well, the public - all of whom are affected by the moving of plant with heavy machinery. There must be an element of general deterrence in penalty to remind employers of the need to identify possible risks and have in place procedures to meet such risks. 25The defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offence. It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 at [228]). 26The maximum penalty for the offence is $550,000. 27In Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99, the Full Bench (Hungerford, Marks and Schmidt JJ) observed at [106]: We accept that there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OH&S Act. ... In accepting the defendant entered an early plea, I adopt principles as recited in R v Thomson; R v Houlton and find there was a utilitarian value of the plea to which should be attached a 25 per cent discount on the penalty. 28It is also agreed that the defendant particularly co-operated with the WorkCover Authority in its investigation. Mr Smith, for the corporation, organised a highly qualified person to do an independent review of the circumstances surrounding this incident. The defendant corporation, on instruction from Mr Smith, has adopted the 10 recommendations arising from the Review which ensures future safe working modules are designed for this specific task. I accept the assurance the 10 identified steps to ensure safety, for this particular task, have all been implemented. In a rare circumstance the prosecutor rendered praise upon the managing director of this corporation, given his co-operation and the implementation of the independent review it funded. 29I am persuaded from now on this task and others performed under Mr Smith's guidance, will be performed with safety given the highest priority. Now no load requiring a jinker will move until the remote control is in working order and a spotter co-ordinates movement. The danger of moving plant where there are employees on foot requires risk assessment. I am now satisfied that the no go zones have been identified and are implemented in safe work method statements. Personnel are re-trained and the wearing of high visibility personal protective gear is now mandatory. Radio communication protocols are now in place. I was particularly concerned as to how the technical failures are addressed. The Court has an assurance if there is such a failure (such as in the jinker's remote control) the task is stopped, machinery is placed in a safe position and repair or replacement occurs before there is any further movement of the machinery and/or plant. 30I accept the defendant has been a fine industrial citizen. I have recited the defendant corporation's years of operation and note it has no prior convictions. 31In Cahill v State of NSW (Department of Community Services) (No 4) [2008] NSWIRComm 201, Boland J (President of the Industrial Court of New South Wales) said at [62]: A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides " remorse " may be taken into account as a mitigating fact if, and only if: . . . (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) (emphasis added) . . . 32I accept that care was taken for Mr Mitchell's family by the corporation in the arrangement of transporting them from New Zealand to attend the funeral of Mr Mitchell in Australia. Further and importantly, for 12 months after the incident the defendant corporation continued to engage Mr Mitchell's family company and paid another driver to drive his truck performing tasks for the defendant so his family could continue to draw from this asset. The corporation is to be commended for these acts and I find them indicative of a very appropriate expression of remorse and contrition. 33Some consideration is given to the defendant's corporate reputation and regard. I find evidence clearly persuades the defendant corporation is a good corporate citizen and that citizenship is a reflection of the personal activity of Mr Smith on the corporation's behalf. Mr Smith has been very active in his industry. He has been a member of the Crane Industry Association of Queensland since 2003 and has served in the role of President since 2008. He has led the crane industry in Queensland to take safety initiatives, including organising a 10 year major inspection for cranes operating in his State. There has been the standardisation of documentation for the safe operation of cranes and the introduction of a safe working programme for crane operations in Queensland. Mr Smith has instigated and overseen many of these initiatives. He also is a member of the Crane Industry Association of Australia and has held a position on its Board. He has worked with that peak national authority to ensure safety inspections are carried out independently on cranes (as distinct from those that were usually done by the machinery sellers). He has ensured that there is a register kept with respect to safety incidents involving cranes so as to enable members of the organisation to learn from the experience. There is mitigation in penalty for the work Mr Smith has done, in the name of his corporate group, to ensure safety in his industry. 34While this was a most serious incident revealing a major breach of the Occupational Health and Safety A ct, the subjective features of the offence are given some weight in my consideration as to penalty but I must keep in mind that the authorities on penalty remind penalty must reflect the objective seriousness of the offence. 35I find the defendant guilty as charged. 36The approach by the Court which has received a Victim's Impact Statement is that stated by Boland J in Inspector Glass v Foamex Polystyrene [2004] NSWIRComm 100 at [43]: ... I am constrained, however, from taking into account the contents of the victim impact statements in coming to a conclusion as to what is the appropriate sentence in this case: R v Previtera; R v Mansour . The fact, however, that the Court is required in the case of a death, to receive a victim impact statement given by a family victim and acknowledge its receipt, and that the Court may make any comment on it that the Court considers appropriate, may help in releasing some of the family's grief and, importantly, it assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace. 37The Court has received a Victim's Impact Statement written and signed by two children of the deceased named Chloe and Brooke. It has been countersigned by their mother, Helen Fisher. It reveals the heartbreak of two young children missing their father and aware he will not be with them as they grow up. The Court cries with the children at their loss and hopes that they understand that there is evidence before this Court that reveals their father was a trusted employee and a professional man held in high regard by all who worked with him. He was a fine man and was obviously a wonderful father. 38Taking into account the objective seriousness of this offence but considering as well the very significant subjective features placed before me I order as follows:
Inspector Madeline Christensen
Universal Cranes Pty Ltd
[2005] HCA 25
[2001] VSC 263
(1996) 70 IR 99
(2000) 49 NSWLR 610
(1996) 82 IR 384
(1999) 90 IR 464
(2005) 215 ALR 213
(2005) 228 CLR 357
(2003) 130 IR 364
(1991) 23 NSWLR 220
(2000) 49 NSWLR 383
(2004) 60 NSWLR 168