Inspector Martin v Russell Larkham

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Boland J Date: 18 February, 2003

Matter No IRC 1280 of 2002 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MARTIN) v RUSSELL LARKHAM

Prosecution under s 19(a) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] IRComm 31

1 This is a prosecution by Inspector Ken Martin of the WorkCover Authority of New South Wales. In an application for order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 filed on 7 March 2002 the Inspector alleged that the defendant, Russell Larkham of 6 Snowden Place, Wanniassa in the Australian Capital Territory being an employee at work on 15 March 2000, located at the Ewingsdale Interchange, adjacent to the Pacific Highway, Byron Bay in the State of New South Wales, failed to take reasonable care of the health and safety of persons who were at his place of work contrary to s 19(a) of the Occupational Health and Safety Act 1983.

2 Section 19(a) provides that: Every employee while at work: (a) shall take reasonable care for the health and safety of persons who are at his or her place of work and who may be affected by his or her acts or omissions at work … 3 It was alleged that the defendant failed to take reasonable care for the health and safety of persons who were at his place of work and, in particular, Heath Grant Worts, who may be affected by his acts or omissions at work in that: (a) The Defendant, once becoming aware that the hand brake on the Isuzu water tanker truck, Registration Number QYX196 ("the truck") was defective, did fail to ensure that steps were taken to prevent employees, including Mr Worts, from operating the truck until such time as the hand brake had been rendered operable. (b) The Defendant failed to inform Mr Worts of the faulty hand brake on the truck and failed to ensure that Mr Worts did not operate the truck whilst the hand brake was defective, or alternatively, would ensure that the truck was placed in low gear whilst on any sloping surfaces. (c) The Defendant failed to inform Ridge's project manager at the said site of the defective hand brake on the truck so that the hand brake would be repaired. The defendant entered a plea of guilty to the charge.

4 An agreed statement of facts was tendered by the prosecution. The statement described the incident as follows: At all material times the Defendant, Russell Larkham (DOB: 16/9/48) of 6 Snowden Place, Wanniassa in the Australian Capital Territory ("the Defendant") was an employee of Ridge Consolidated Pty Limited (ACN 008 589 437) ("Ridge"). On 15 March 2000 Ridge was carrying out roadworks at the Ewingsdale Interchange, adjacent to the Pacific Highway, Byron Bay in the said State ("the site"). On 15 March 2000 the Defendant was employed as the Works Foreman for Ridge. At all material times Ridge employed Heath Grant Worts ("Mr Worts"), aged 29 years of age, to undertake work for it at the site as a labourer. At all material times Ridge owned an Isuzu water tanker truck, Registration Number QYX-196 ("the truck"). The truck carried large volumes of water for spraying freshly graded sections of road. The truck weighed approximately 5.5 tonne unladen and approximately 13.5 tonne when it was full of water. On 15 March 2000, Mr Worts was asked to drive the truck by Mr Alan Sherwood, an operator employed by Ridge. This was the first time Mr Worts had ever driven the truck. Mr Sherwood had shown him how to turn the water on and fill it up. Mr Worts stated that he could not recall whether or not he was informed by Mr Sherwood that the handbrake was not working on the truck, although he was told there was some "gear trouble". Mr Sherwood states that he told Mr Worts that the park brake did not work and that he would need to place the truck in low gear and shut the engine down. At first Mr Worts was working at the top of the hill. Mr Sherwood was at the bottom of the hill in a Leyland water tanker. He was watering an area which was being rolled by Patrick Hunt, a roller operator employed by Ridge. Mr Sherwood then reversed back and his left rear wheel went into some soft material and he did not have the power to pull the Leyland water tanker back out. Mr Worts received a call from a grader driver and drove the truck to the site and sprayed the gravel. Mr Worts parked the truck slightly uphill from Mr Sherwood's vehicle, stopped the truck, applied the handbrake and exited the truck to walk down to Mr Sherwood. As Mr Worts and Mr Sherwood were talking, Mr Hunt looked up and saw the truck starting to roll downhill towards the driver's side of Mr Sherwood's truck. Mr Hunt called out to both men to "look out". The truck was not running directly towards them and had the possibility of running onto the Pacific Highway at the site where there was moving traffic. Mr Worts ran to the truck, opened the door, reached in and grabbed the steering wheel with one hand and pulled the handbrake on. Mr Worts thinks the handbrake came straight out. The truck collided with Mr Sherwood's vehicle. Mr Worts was caught in the door. He then fell between the two vehicles on the ground. In the subject accident Mr Worts suffered a dislocated hip and lacerations to his scrotum and groin area.

5 According to the agreed statement of facts subsequent investigations into the incident revealed the following: Prior to the accident on 15 March 2000, it was Ridge's procedure that, prior to operating a vehicle, all drivers on site completed an Operator Daily Pre-Start Checklist. This involved placing a tick or a cross on the checklist which listed such items to be inspected as brakes, fuel, park brake, horn, seatbelts, airconditioning and tyres. The checklist was collected at the end of each week by the Defendant, who signed the checklists and placed them in the tray of the site engineer (Brent Backhouse). The site engineer filed the checklists away. In his statement, the Defendant stated that he signed the Operative Daily Pre-start Checklists for receipt only and that it was not his job to locate any defect reported upon the Checklist. Mr Larkham also stated that, upon receipt of the Checklist, he took them into the Engineer's office. He stated that he presumed that Gary Maybury (sic) or, in the case of a hired plant, the owner, directed that repairs be carried out. Ridge's drivers completing the checklists had recorded a defective handbrake on the truck on the checklist for a period of approximately two (2) months prior to the accident from about 5 January 2000 onwards. The truck was used almost everyday for the previous three (3) months during work hours. Other employees of the Defendant, in particular, Mr Gary McInnes and Alan Matthewson were also aware that the handbrake was faulty and had operated the truck with a faulty handbrake over a period of several months. Mr McInnes removed the pin from the handbrake stem and placed it in the ash tray to make it clear to operators that the handbrake was inoperable. Mr McInnes and Mr Matthewson parked the truck by turning it off and placing it in low gear to prevent it rolling when parked. Mr McInnes had indicated on the Pre-Start Checklist that the handbrake was defective. Mr Sherwood had also indicated on the Pre-Start Checklist for the previous two weeks prior to the accident that the handbrake was defective. Ridge had no policy or system of work to deal with actioning defects in any plant or equipment identified by operators. Ridge's foreman, Gary Maybery, was responsible for arranging repairs to any plant and equipment. Mr Maybery, however, was not made aware of the defective handbrake. An inspection of the truck following the accident revealed that the pin connecting the handbrake cable had been disconnected. As such, the handbrake shaft extended to its maximum and, without resting on any position, it then fell to the floor.

6 Other evidence in the proceedings consisted of: (a) A bundle of 12 colour photographs showing various aspects of the accident scene; (b) A factual inspection report by Inspector Martin dated 18 August 2000; (c) A testimonial letter by David Morton, former group captain with the Queanbeyan City Rural Fire Service, regarding the defendant's service over 11 years in that Service; (d) A record of prior convictions indicating the defendant had no prior convictions.

7 The defendant has, in this case, pleaded guilty to the charge under s 19(a). Whilst I have some reservations about the fact that the employer, Ridge, had no policy or system of work to deal with actioning defects in plant or equipment identified by operators and the implications of that for the defendant's guilt, I am prepared to accept the guilty plea.

8 In coming to that conclusion I have had regard to what the full court of the Industrial Court of New South Wales (Fisher P, Glynn and Hill JJ) stated in WorkCover Authority of New South Wales (Inspector Gordon) v Gregory Ronald Wallis (unreported, matter no. CT 1011 of 1995, 14 August 1996) at 7-8: Section 19(a) … does not … impose a strict or absolute liability on an employee; it requires only that an employee shall take "reasonable care" for the health and safety of persons at work who may be affected by his acts and omissions at work. However, in our opinion, the test to be applied under the section in determining whether or not an employee has failed to take reasonable care in any act or omission which may affect another's health or safety is an objective and not a subjective one. In other words, actual intent by the employee is not a necessary ingredient of contravention of the section. Nor, in our view, need the act or omission be a deliberate one. The section is mandatory and imposes a positive duty - to take reasonable care. Nevertheless, while the test is objective and "intent" is not necessary, all relevant circumstances must be taken into account in determining whether "reasonable care" was taken. For example, matters such as the employee's state of knowledge, qualifications, expertise, experience and status as foreman, site supervisor or manager, are relevant to this issue. The question in this case therefore comes down to whether or not the respondent in his capacity as an employee, was guilty of an act or omission which an informed and objective observer, having regard to all of the circumstances, would reasonably have foreseen would affect the health and safety of Mr Saleh.

9 The full court also said at 11: In our view the fact that an act or omission of an employee while at work occurs in or in relation to the employer's system of work (or lack of one) or conduct of the undertaking does not of itself exculpate the employee from the duty under s 19(a) to take reasonable are not to do or fail to do any act which may affect the health and safety of any person who is at his place of work.

10 In the present case the defendant was an employee of Ridge; he was also the works foreman for the work being carried out at the Ewingsdale Interchange. Mr Worts was also an employee of Ridge and, it may be said, was a person at the defendant's place of work. It was Ridge's procedure that, prior to operating a vehicle, all drivers on site completed an Operator Daily Pre-Start Checklist. This involved placing a tick or a cross on the checklist which listed such items to be inspected as brakes, fuel, park brake, horn, seatbelts, airconditioning and tyres. The checklist was collected at the end of each week by the Defendant, who signed the checklists. Ridge's drivers completing the checklists had recorded a defective handbrake on the truck on the checklist for a period of approximately two (2) months prior to the accident.

11 According to the agreed statement of facts, the defendant was aware of the defective handbrake on the Isuzu water tanker truck but that he took no action to have it repaired because he presumed that was someone else's responsibility. The defendant also failed to prevent employees, including Mr Worts, from operating the truck whilst the handbrake was defective. Indeed, the defendant failed to inform Mr Worts of the defect.

12 That the health and safety of persons at the defendant's place of work might be endangered by a defective handbrake was reasonably foreseeable on objective standards. The tanker truck weighed approximately 5.5 tonnes unladen and 13.5 tonnes when full of water. It was used nearly every day for the two months prior to the accident. The defendant was aware of the defective handbrake, having signed off on checklists indicating the defect on a weekly basis.

13 The fact that Ridge had no policy or system in place to repair defective vehicles did not, given all of the circumstances, relieve the defendant of his duty to take reasonable care that persons at his place of work would not be injured by a vehicle with a defective handbrake. As I have already stated, I am satisfied that the plea of guilty was properly entered.

14 The defendant's failure to take any steps to effect repairs to the handbrake and his failure to prevent persons from operating the truck until the handbrake was repaired amounts to a relatively serious offence. That persons might be injured as a consequence of these failures was, as I have said, reasonably foreseeable. Moreover, simple, straightforward steps were available to remedy the defective handbrake and to prevent persons from operating the truck until the handbrake was repaired.

15 In relation to deterrence, the principles were discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence, I am satisfied that the likelihood of the defendant re-offending is low and, therefore, specific deterrence is not a significant element in my consideration as to penalty.

16 In considering the objective seriousness of the offence I have taken into account in mitigation the fact that the defendant's employer had no policy or system of work to deal with actioning defects in any plant or equipment identified by operators.

17 There are a number of subjective factors that I have taken into consideration. These include the defendant's early plea of guilty and the fact that he has no prior convictions. There is no evidence to suggest that the defendant is other than a person of good character.

18 As to penalty, Ms K Davies of counsel for the defendant submitted that the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 should apply. Section 10 provides: 10. Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

19 The basis of Ms Davies' submission regarding s 10 was that in the absence of any policy or procedure the defendant was not aware that he was required to action any defects in plant or equipment. As I understand the submission, whilst the defendant accepted that he was culpable to some degree, most of the blame lay with the employer, Ridge.

20 It seems to me, however, it is a matter of plain commonsense that if a works foreman is aware of a defect in a truck that represented a risk to health and safety of persons in respect of whom the foreman is supervising, he would take steps to remedy the defect. Where there is an obvious risk to safety, it is no defence for a defendant to contend that "I did not know it was my responsibility" in circumstances where the defendant has a duty to take reasonable care under s 19 of the Occupational Health and Safety Act. The defendant's failure to take reasonable care could not, in the circumstances, be regarded as a trivial offence.

21 Although the defendant is a person of good character who has not committed any prior offence under relevant occupational health and safety legislation, there are no extenuating circumstances or other considerations that would indicate s10 should be applied. I have previously indicated that I regard the offence objectively as being relatively serious in nature.

22 I note that the maximum penalty under s 19(a) is $3,300. In all the circumstances I would assess an appropriate penalty at $800. Given the early plea of guilty I would allow a discount of 25 per cent with a further discount of 10 per cent for the other subjective factors leaving a penalty of $520. Orders

23 The Court makes the following orders: 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 $520 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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