Inspector Michael Kent v Sherrin Hire Pty Limited

Occupational Health and Safety - prosecution under section 11 of the Occupational Health and Safety Act 2000 - equipment hire business - supplier of machine - early plea of guilty - injury sustained by an electrical linesman - primary cause of risk was due to design of machine - general and specific deterrence - mitigation - contrition - defendant found guilty - penalty imposed CATCHWORDS:

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

Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 Nesmat Pty Limited v WorkCover Authority of NSW (1998) 87 IR 312 CASES CITED: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81

PROSECUTOR: Mr D Chin of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES:

DEFENDANT: Ms W Thompson of counsel SOLICITORS: Home Wilkinson Lowry

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

Prosecution under s.11(1) of the Occupational Health and Safety Act 2000

1 The defendant operates an equipment hire business. On 19 November 2002, an employee of Integral Energy Pty Limited, Mr Malcolm Fletcher was injured while working on the upgrade of overhead powerlines located in the bush at Mt Wilson. Mr Fletcher was working some 11 metres above ground, using an elevated work platform mounted on a truck, supplied to Integral Energy by the defendant in August 2002. The truck toppled with Mr Fletcher in the bucket of the machine, when it became unstable as the boom of the machine was extended. 2 The defendant pleaded guilty to an offence brought under s 11 of the Occupational Health and Safety Act 2000 ('the Act'). This judgment deals with penalty. The charge provided:

DID FAIL, on or about 5 August 2002 contrary to Section 11(1) of the Occupational Health & Safety Act 2000 (NSW) to ensure that the plant, to wit the machine, was safe and without risk to health when properly used and further the Defendant DID FAIL to provide or arrange for the provision of adequate information about the plant, to wit the machine, to the persons to whom it was supplied to ensure its safe use. The particulars of the charge are as follows: 1. The machine was inherently unsafe in that the machine could become so unstable as to tip over when it was being properly used by persons, including a person situated in the bucket of the machine. There was an inadequate system of indicating the level condition of the machine. There were inadequate instructions provided by the Defendant with the machine to advise the operator of the machine's operational limits and its safe use. The use of the machine in accordance with the operator's manual was inadequate to protect the user of the machine.

2. The machine was supplied from the Defendant's depot in Unanderra in the State of New South Wales and was delivered to Integral Energy's depot in Katoomba in the State of New South Wales. The machine had a reach of approximately thirteen (13) metres. The machine had rear spring suspension spring lockouts and two vertical hydraulic stabilisers mounted one behind each pair of rear wheels. The machine was fitted with a bubble inclinometer level, which was mounted on the turret of the machine and which rotated on the turret.

3. On 19 November 2002, Mr Malcolm Fletcher ("Fletcher"), an electrical linesman in the employ of Integral Energy, suffered injury whilst using the machine at work. In the course of his employment with Integral Energy, Fletcher was using the machine supplied by the Defendant in the vicinity of Mt Irvine Road, Mt Wilson 2786 in the State of New South Wales. Fletcher was part of a team of workers who were upgrading an 11,000 volt overhead power line. Fletcher was in the process of attempting to attach new wires to insulators situated near the top of a recently installed pole, which was approximately eleven (11) metres in height. Assisting Fletcher with the task was John Price ("Price"), a tree trimmer and Elevated Work Platform (EWP) operator employed by Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency.

4. At the time of the incident, the machine had been located so that it was pointed at the pole with the cab of the vehicle of the machine nearest the pole. The ground was uneven and sloped up towards the pole. The ground also sloped down from the right of the machine to the left of the machine.

5. Just prior to the incident, Fletcher entered the bucket of the machine, and the rear stabilising legs were placed down to attempt to level the machine. Fletcher raised the second stage boom of the machine towards its full extent. During the slewing operation the machine tipped over to its left, and the bucket of the machine, with Fletcher inside it, fell across the dirt track. The fall of the machine, including the bucket, was cushioned to some extent by trees that were in the close vicinity of the machine. In the subject accident, Fletcher suffered a gash to his right forearm, as well as bruising to his body and a strain to his neck.

3 Section 11 of the Act provides: 11 Duties of designers, manufacturers and suppliers of plant and substances for use at work (1) A person who designs, manufactures or supplies any plant or substance for use by people at work must: (a) ensure that the plant or substance is safe and without risks to health when properly used, and (b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use. (2) The duties under this section: (a) apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and (b) apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by people at work, and (c) extend to the design, manufacture or supply of components for, or accessories to, any plant for use by people at work, and (d) extend to the supply of the plant or substance by way of sale, transfer, lease or hire and whether as principal or agent, and (e) extend to the supply of the plant or substance to a person for the purpose of supply to others, and (f) do not apply to a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person. (3) In this section, manufacture plant includes assemble, install or erect plant. 4 Various documents were tendered in the prosecution case. The defendant led evidence from Mr Michael Patrick Sherrin, its executive manager. Mr Sherrin was not required for cross examination. The statement of facts agreed by the parties provided:

1. At all material times the Prosecutor was: (a) an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 (NSW) ("the 1983 Act");

(b) taken to be appointed as an Inspector under the Occupational Health and Safety Act 2000 ("the 2000 Act") by virtue of Clause 11 of Schedule 3 to the 2000 Act; and

(c) empowered under s.106 of the 2000 Act, as extended by Clause 13 of Schedule 3 to that Act to institute proceedings in the within matter. 2. At all material times, Sherrin Hire Pty Ltd (ACN 007 741 942) ("Sherrin Hire"), ("the Defendant") was an incorporated company in the State of South Australia with its registered office at 223 Fison Avenue, West Eagle Farm in the State of Queensland. At all material times, the Defendant conducted business in the State of New South Wales.

At all material times, the Defendant was a person who supplied plant for use by persons at work, to wit an Elevated Work Platform (EWP) unit number HT227 mounted on a Hino truck registration YCN 294 (together hereinafter referred to as "the Machine").

The Defendant supplied the Machine on or about 5 August 2002 to Integral Energy Australia ("Integral Energy") for use by employees and/or non-employees of Integral Energy at work.

Prior to 5 August 2002, Integral Energy entered into a periodic hire arrangement with the Defendant to hire the Machine from the Defendant for use by employees and/or subcontractors of Integral Energy at work.

The Machine was designed and manufactured in Victoria by Nifty-Lift Pty Ltd ("Nifty-Lift") of 4 Glenann Court, Boronia in Victoria. The Hino truck vehicle was owned by the Defendant and supplied to Nifty-Lift for installation of the EWP on to the vehicle. The Machine was imported into New South Wales during July or August 2002.

The Defendant states that at the time of the purchase it believed that the Machine complied with relevant Australian Standards and that the Machine had completed stability and operational tests. However, the Defendant did not adequately verify independently that the Machine was safe and without risks to safety prior to 19 November 2002.

Before the Machine was purchased from Nifty-Lift, the Defendant discussed the Machine's design criteria with Nifty-Lift. Around that time, discussions were held between the Defendant and Integral Energy employees regarding specific design criteria for the Machine and the suitability of the Machine for its intended purpose of being used in bush areas, and particularly narrow roads and confined spaces.

On or around 5 August 2002, two (2) employees of Integral Energy attended the Defendant's depot in Unanderra where they were given familiarisation training and Operator unit specific induction by the Defendant in relation to the Machine. The induction involved demonstrating to the employees of Integral Energy where the specific functions and safety stops were located on the Machine.

The Defendant delivered the Machine to Integral Energy's depot in Katoomba. Bruce Coxon ("Coxon") the Network Manager, West for Integral Energy then had consultation with work crews who were to use the Machine and discussed issues of training and how the Machine operated.

At the request of Coxon on or around 3 October 2002, the Defendant conducted further familiarisation or awareness training in relation to the Machine at the Integral Energy depot in Katoomba that was attended by Malcolm John Fletcher ("Fletcher") and other Integral Energy employees. This training covered topics including where the power take off was located, how the stabilisers worked, warnings, lights and bucket controls. At the training it was indicated by the Defendant that the maximum slope angle that the Machine should work on was 5 degrees. A copy of the Elevated Work Platform operating manual written by Nifty-Lift was provided to Integral Energy.

The Machine had a reach of approximately thirteen (13) metres. The Machine had rear suspension spring lockouts and two vertical hydraulic stabilisers mounted one behind each pair of rear wheels. The Machine was fitted with a bubble inclinometer level, which was mounted on the turret of the Machine and which rotated with the turret.

From around August 2002, both employees and sub-contractors of Integral Energy used the Machine at various sites, including sites located in and around the Blue Mountains in the State of New South Wales. The Defendant states that as far as the Defendant is aware there were no incidents regarding instability or other matters arising from the use of the Machine during this period.

On 19 November 2002, Fletcher, an electrical linesman in the employ of Integral Energy, suffered injury whilst using the Machine at work in the vicinity of Mount Irvine Road, Mt Wilson in the State of New South Wales. Fletcher was part of a team of workers who were upgrading an 11,000 volt overhead power line. Fletcher was in the process of attempting to attach new wires to insulators situated near the top of a recently installed pole, which was approximately eleven (11) metres in height.

Assisting Fletcher with the task was John Price ("Price"), a tree trimmer and Elevated Work Platform (EWP) operator employed by Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency.

The incident occurred about 230 metres up a sloping, dirt public-access track which came to a power line, off Mt Irvine Road opposite Mount Wilson Picnic Park in Mount Wilson.

Prior to the incident, Price attempted to reverse the Machine to the power pole, however because of difficulties with placing the Machine in a stable and safe position, Price turned the Machine around and parked the Machine front on towards the pole, with the cab of the vehicle of the Machine nearest the pole. The front wheels were in contact with the ground but they were not level, with the right front wheel positioned higher than the left front wheel.

The ground was uneven and sloped up towards the pole. The ground also sloped down from the right of the Machine to the left of the Machine. On the day of the incident, the Informant attended the site where the incident had taken place, and took tape measurements of the ground slope. Subsequent calculations undertaken by an engineer based on those measurements revealed that: a). the ground slope angle at the rear stabilisers was measured at approximately 8.5 degrees (0.28 meters vertical x 1.88 metres horizontal approximately).

b). the ground slope angle at the front wheels was measured at approximately 9 degrees (0.3 metres vertical x 1.78 metres horizontal approximately).

c). the ground slope angle between the front and back wheels was measured at approximately 7.3 degrees (0.5 metres vertical x 3.88 metres horizontal approximately). 19. Just prior to the incident, Fletcher entered the bucket of the Machine, and the rear stabilising legs were placed down. Fletcher raised the second stage boom of the Machine towards its full extent. During the slewing operation the Machine tipped over to its left, and the bucket of the Machine, with Fletcher inside it, fell across the dirt track.

The fall of the Machine, including the bucket, was cushioned to some extent by trees that were in the vicinity of the Machine. As the bucket fell through the trees, Fletcher unclipped his safety harness with a view to jumping clear of the bucket but then decided to duck down into the basket and brace himself for the impact. The bucket's descent was slowed down by the trees and on impact Fletcher landed on the right side of his body.

Fletcher suffered a deep cut to the inside of his right forearm, bruising and was treated for neck strain. Fletcher was taken to hospital where x-rays and medical tests were carried out. Fletcher returned to work on light duties on the day after the incident and was on normal duties approximately three (3) weeks later.

Following the incident, the Defendant withdrew the Machine and another similar machine from service, pending its investigation.

Following the incident, R. K. Findlay Pty Ltd, Consulting Engineers were engaged by Hartrite Pty Ltd to undertake stability testing and operational testing of a sister unit to the Machine. Attached is a copy of the report of R. K. Findlay Pty Ltd dated 10 December 2002.

Following the incident a prohibition notice was placed on the Machine.

The Defendant also had the Machine assessed and following the assessment the Defendant had the Machine modified to meet stability requirements. Nifty-Lift found that the EWP had an unstable condition in the "backwards" stability configuration on maximum side slope. Following the incident the EWP was fitted with an interlock system to prevent the boom being used in the "backwards" stability configuration when operated on spring lockouts alone. In the case of a two boom EWP, "backwards" stability configuration means the situation where the bottom boom is horizontal and the top boom is fully raised, and "forward" stability configuration means the situation where the bottom boom is fully raised and the top boom is horizontal. The interlock system was subsequently installed to prevent the bottom boom being slewed in either direction unless the bottom boom is fully raised, and once raised the bottom boom cannot be lowered unless the boom is slewed to the stowed (in line with the vehicle) position. The interlock system means that the boom cannot be manoeuvred into the "backwards" configuration if the spring lockouts are being used.

Following the incident, the EWP was also fitted with a pair of front stabilisers in addition to the existing rear pair. Changes were also made to the operational instructions including in relation to the operational limits of the Machine. An additional level gauge was also fitted to the Machine.

The Defendant now independently tests new types of truck mounted Elevated Work Platforms before they are hired out.

The Defendant, being a person who supplied plant for use by persons at work, to wit the Machine, supplied the Machine on or about 5 August 2002 to Integral Energy for use by employees and/or non-employees of Integral Energy at work, and did fail, on or about 5 August 2002 contrary to section 11(1) of the Occupational Health and Safety Act (NSW) 2000 to ensure that plant, to wit the Machine, was safe and without risk to health when properly used and further did fail to provide or arrange for the provision of adequate information about the plant, to wit the Machine, to the persons to whom it was supplied to ensure its safe use.

5 Mr Findlay made a number of recommendations in the report, under the heading 'Rectification', to the following effect:

The Elevating work platform needs to have the stabilising moment increased to comply with the standards.

A better system of indicating the level condition of the unit.

Improve operator instructions and in particular the operational limits.

Obtain a N.S.W. Work Cover compliance to the Australian Standards.

Until the above is corrected the machine is not fit for the purpose.

The parties' respective cases 6 The case advanced for the prosecutor, by Mr Chin of counsel, was that the objective features of the offence in question warranted the imposition of a substantial penalty, for a number of reasons, including that s 11 of the Act imposed strict obligations on a supplier such as the defendant, which were not diminished because of error or inadvertence on the part of the user of the machinery supplied. (See WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [38], [47] and [49].) The machine was unsafe at less than the maximum slope angle of 5 degrees, as to which the defendant had instructed Integral Energy employees. The defendant had obligations to ensure safety, even though the machine was primarily designed and manufactured by another party. Principles of deterrence required that the defendant and other suppliers be deterred from failing to adequately and independently ensure or verify that dangerous plant such as this, is stable. The risk which materialised in November 2002 was foreseeable and obvious. Available measures to ensure safety were not taken by the defendant. The gravity of the risk was serious. Death was not a remote possibility in the case of breach. 7 A number of subjective factors were acknowledged, including the early plea entered and the fact that the defendant had no prior convictions. 8 The case advanced for the defendant, by Ms Thompson of counsel, was that the defendant accepted that it had committed the offence charged and had accordingly entered a plea at the earliest opportunity, but there were significant mitigating factors which would be taken into account, with the result that a penalty at the lower end of the scale would be imposed. 9 It was submitted to be relevant that the risk flowed from design features of the machine for which the defendant was not responsible and which were not obvious or known to the defendant. It had commissioned the construction of the equipment, having selected a designer and manufacturer, with a good reputation for safety. The use to which the machine was to be put was made known by the defendant; it had participated in the design process, emphasising the need for stability of the machine to be ensured, given the work it was to perform; the designer's New South Wales agent had also been involved in the design process; when provided to it, the defendant had tested the machine's operation, but not its compliance with specified Australian design standards, because the machine was fitted with a compliance plate and a certificate of compliance had been issued by the Victorian WorkCover Authority, on which it had relied; it had trained the employees of Integral Energy in the operation of the machine in accordance with the designer's instructions, which specified use of the machine at grades up to 5 degrees; the accident had occurred when the machine was used at grades significantly in excess of 5 degrees and in circumstances where the machine had been parked inconsistently with ordinary operational practice, adding to its instability. 10 The steps taken by the defendant after the accident were also relied upon, as well as evidence of its general approach to safety, and its years of safe operation, consistent with that approach. It was noted that while the recommendations made by Mr Findlay had been acted upon by the defendant, they had still not been included in the relevant Australian Standard. It had also entered a plea at the earliest opportunity, consistent with its acceptance of its obligations. 11 It was argued that relevant to an assessment of the nature and quality of the offence was that the offence had flown from an inherent design flaw in relation to the machine's stability, the responsibility for which primarily lay with the designer and manufacturer of the machine, who had the capacity and knowledge to ensure the machine's stability, and had failed to do so. It had made known to the manufacturer the importance of stability, given the intended use of the equipment; it had insisted on additional measures to ensure stability in the design and had tested their operation prior to supply; it had relied on the compliance plate and certificate provided in relation to Australian Standards being satisfied and had thus not tested this, it being testing of a kind which the defendant did not have the capacity to undertake itself; it relied on the training and instruction manuals provided and had delivered training in accordance with those documents. It followed, it was argued, that it was not readily foreseeable to the defendant that, in fact, the machine became unstable at a slope of 4 degrees and there was nothing apparent at the time of the supply of the machine to it, which suggested that it was not fit and safe for its intended use, or that there was any inherent instability in the machine. 12 Also to be taken into account, it was submitted, were the observations of the Full Court in Nesmat Pty Limited v WorkCover Authority of NSW (1998) 87 IR 312, that there would be a justifiable sense of injustice in this case, where neither the designer and manufacturer of the machine, or the New South Wales agent also involved in its design, had been prosecuted. It was only this defendant and Integral Energy, against whom the prosecutor had laid charges. Consideration 13 Consistently with the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in a case such as this must be approached from a consideration of the nature and seriousness of the offence in question, together with aggravating and mitigating factors. 14 Given the nature of the machine here in question, the design flaws which the accident highlighted, plainly gave rise to serious risks to safety. The machine was designed to permit work to be undertaken at considerable height, in rough terrain in the bush. In those circumstances, the need to ensure that the machine was stable when operated was obvious. While, on the evidence, the defendant took steps to ensure that the machine was manufactured with these needs in mind, the necessary stability, was not ensured. Indeed, the advice given by the defendant to Integral Energy as to the slope at which the machine could be safely operated was inaccurate, albeit the advice was consistent with that provided by the manufacturer and designer of the machine. On the evidence, the consequences for Mr Fletcher, when the machine toppled while he was working at a height of 11 metres, while serious, could easily have resulted in greater injury, or even death. 15 The defendant's plea properly accepted its culpability in the circumstances, given the absolute obligations which the Act imposes upon suppliers of plant. I am also satisfied, however, that on the evidence the offence does not fall within the more serious range of cases which come before the Court. 16 The evidence showed that on 19 November 2002 when the risk materialised, the machine was being operated on a slope considerably greater than 4, or even 5, degrees, the slope at which the machine could, in fact, be operated and that which the manufacturer advised to be safe. Despite this, the defendant accepted its culpability, as I have noted. I accept that it is relevant to an assessment of penalty that foreseeability be considered. Here, it cannot be overlooked in assessing the foreseeability of the risk in question, that this was not a case of neglect of a readily apparent danger of the machine tipping at a slope of 4 degrees. While the machine became unstable at that degree of slope, rather than at a slope of 5 degrees, such instability was not evident without specialised testing of the machine which the defendant did not itself have the capacity to undertake. It must be accepted, of course, that the risk of the machine tipping if it became unstable was entirely foreseeable. In entering its plea, the defendant accepted that it had committed the offence by wrongly placing reliance on the designer and manufacturer's assertion that the machine was stable at a 5 degree slope and on the Victorian WorkCover Authority certificate. These are all matters relevant in assessing foreseeability. 17 Also relevant is the evidence which showed that the defendant selected a designer and manufacturer with a sound reputation, whose managing director was a qualified engineer of many years experience and a member of the Standards Australia Committee. The defendant not only informed the designer of the work for which the machine was required, but sought to ensure that additional measures were taken to ensure the stable operation of the machine in rough terrain. When supplied, the defendant tested the machine to ensure that it was in safe working order. As it acknowledged by its plea, inconsistently with its obligations under the Act, it relied upon a compliance plate and certificate issued by the Victorian WorkCover Authority, to assure itself that the machine complied with the relevant Australian standards and could be operated safely on a slope of up to 5 degrees, as the manufacturer represented. 18 Regrettably, that certificate was not properly understood by the defendant. The certification did not evidence that the WorkCover Authority had satisfied itself of such compliance. Rather, it showed that in accordance with the requirements of the applicable Victorian Regulations, another designer had certified such compliance. So it was that the offence was committed. These factors are relevant nevertheless, in assessing the defendant's level of culpability for the offence it has admitted. 19 As a result of the accident, the defendant revised its approach to equipment which it supplies and now engages external expert testing, to satisfy itself as to the safety of such equipment, before hiring it out. This approach has been added to steps previously taken by the defendant to ensure that its safety obligations are met. These include the testing, inspection and repair of equipment which it offers for hire, both after each hire and in the field, on a regular monthly basis by its mobile mechanics. The evidence also revealed the financial commitment which the defendant already made annually, prior to these events to ensure its safety obligations were met. 20 These steps were taken by the defendant, together with others designed to ensure that its obligations under the Act were met. In relation to the machine here in question, it was independently tested after the accident and then modified to ensure its safe operation, at considerable cost. 21 All these steps were plainly commendable. However, in the case of the steps taken in response to the deficiencies of this machine, the evidence confirmed that they were steps which the defendant should have taken before the accident, as the defendant accepted by its plea. There was no suggestion that there was any difficulty in taking them. Rather, it was as the result of misplaced reliance upon incorrect information provided by the manufacturer and designer and a misunderstanding of what a Victorian WorkCover Authority Certificate conveyed, which led to the commission of this offence. 22 I am satisfied that in the circumstances of this case, both general and specific deterrence have a role to play in the penalty imposed. I have approached specific deterrence on a somewhat lesser basis than I would have, in the absence of evidence of serious prior attention to ensuring safety. I am not satisfied however, that it is an element of penalty which can properly be entirely excluded in the circumstances of this case. 23 I have also noted the observations of the Full Court in Nesmat. There was no explanation as to why the designer of this machine and its New South Wales agent have not been prosecuted. As was there taken into account, it is relevant here to have regard to that matter. The fact that the primary cause of the risk was the design of the machine and the inaccurate advice given by its manufacturer, as to its safe use must be taken into account. As I have noted, the risk was compounded by the reliance placed upon the certificate that the machine complied with the applicable standard and had been adequately tested as to its stability. These are matters which must not be overlooked in determining sentence, so that the sentence imposed does not give rise to a justifiable sense of injustice. 24 I also note that I have adopted the approach I discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31], to the determination of penalty having regard to the plea entered at the earliest opportunity and the other evidence going to mitigation. I am well satisfied that there was real contrition on the part of the defendant for the offence and its consequences, which must properly be reflected in the penalty imposed. I also accept on the evidence that this is a defendant unlikely to offend again. 25 The maximum penalty, for this first offence is $550,000. I have concluded that a penalty of $48,750 is just in all of the circumstances here before the Court. Orders For all of the reasons given, I make the following orders:

(i) The defendant is found guilty of the offence charged and is to pay a penalty of $48,750, with a moiety to the prosecutor.

(ii) The defendant is also to bear the prosecutor's costs, as agreed or assessed by the Court, failing agreement.

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