Inspector Neil Buggy v Weathertex Pty Limited

Industrial Relations Commission (NSW)|1997-10-30|Before: Wright J, Walton J, Boland J

CITATION : Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 APPELLANT: WorkCover Authority of New South Wales (Inspector Buggy) PARTIES : RESPONDENT: Weathertex Pty Limited FILE NUMBER: IRC4733 of 2002 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS : Appeal - Occupational health and safety - Fatality - Relevant principles - Crown appeals - Double jeopardy - Sentence manifestly inadequate - Usual practices at workplace - Pro-active measures not taken - Failure to train, instruct and supervise - Induction programme inadequate - General and specific deterrence - Subjective features - Discount for double jeopardy - Penalty - Appeal upheld. Criminal Appeal Act 1912 s5D LEGISLATION CITED : Industrial Relations Act 1996 s196 Occupational Health and Safety Act 1983 s16 Bultitude v Grice (No. 2) [2002] NSWIRComm 234 Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 Capral Aluminium limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Department of Mineral Resources NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 Haynes v CI &D Manufacturing Pty Ltd (No 2) (1995) 60 IR 149 House v The King (1936) 55 CLR 499 Inspector Ian Batty v Graincorp Operations Limited [2002] NSWIRComm 49 Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319 Inspector Tyler v Sydney Electricity (1993) 47 IR 1 Inspector Webb v Namoi Cotton Co-Op [2003] NSWIRComm 29 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Legge v Coffey (No 3) [2002] NSWIRComm 30 Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94 R v Allpass (1993) 72 A Crim R 561 R v Musumeci (unreported, CCA NSW, 30 October 1997) Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 CASES CITED : Vierow v Ridge Consolidated Pty Ltd (No 3) [2002] NSWIRComm 345 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 Wong v R (2001) 185 ALR 233 WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority (NSW) (Inspector Kelsey) v University of Sydney (unreported, Matter No CT 1280 of 1995, 2 April 1997) WorkCover Authority NSW (Inspector Byer) v Cleary Bros (Bombo) (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International Australia Pty Limited (2001) 105 IR 81 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 WorkCover Authority of New South Wales v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 WorkCover Authority of NSW v TRW Steering and Suspension Australia Limited [2001] NSWIRComm 52 HEARING DATES: 04/07/2003; 04/29/2003 DATE OF JUDGMENT: 09/12/2003

APPELLANT: Mr S Crawshaw SC with Mr D Chin of counsel SOLICITOR: Mr D Morris Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT: Mr B Hodgkinson SC SOLICITOR: Mr C Fisher Fisher Cartwright Berriman

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

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

Matter No IRC 4733 of 2002 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR NEIL BUGGY) v WEATHERTEX PTY LIMITED

Appeal from a decision of His Honour Mr Justice Marks given in Matter No IRC3805 of 2001 on 26 July 2002. JUDGMENT OF THE COURT [2003] NSWIRComm 273

1 This matter concerns an appeal by Inspector Neil Buggy (the "appellant"), pursuant to section 196 of the Industrial Relations Act 1996 and section 5D of the Criminal Appeal Act 1912, against the judgment of Marks J delivered on 26 July 2002 in sentencing proceedings involving the respondent Weathertex Pty Ltd.

2 On 18 June 1999, a fatality occurred at the respondent's log yard premises located at Masonite Road, Raymond Terrace. The respondent pleaded guilty to the charge under s 16(1) of the Occupational Health and Safety Act 1983 that it had failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking whilst they were at its place of work. The charge was particularised that the respondent failed to provide a system of work that was safe and without risks to health for the unloading of logs from vehicles (including the preparations for unloading) at the log yard of the premises.

3 The respondent entered a plea of guilty and his Honour in determining the applicable sentence, found that the breach of the Occupational Health and Safety Act was not, in all the circumstances, "a serious one" and imposed on the defendant a "net" penalty of $18,750 (after allowing a 25 per cent reduction for an early plea of guilty). The appellant appeals against the inadequacy of the sentence.

4 His Honour set out the statement of facts agreed to by the appellant and respondent as follows: 4. At all material times Weathertex Pty Limited: (a) Was an incorporated company with its registered address at Level 18, Tower Building, Australia Square, Sydney in the State of New South Wales; (b) Carried out hardboard production at premises located at Masonite Road, Raymond Terrace in the State of New South Wales; (c) Employed Mark William Giles, James Edward Smith, Richard Osborne and John Bennett as manufacturing support manager, manufacturing support officer, loader operator, boiler attendant and plant manager respectively; (d) Contracted with K P & C J Barry Pty Limited and others to deliver timber to the premises. 5. Kenneth Barry, 50 years of age, was managing director of and was employed as a truck driver by K P and C J Barry Pty Limited. Mr Barry was not employed by the defendant. KP and CJ Barry Pty Limited was engaged in the business of timber haulage. The company had three trucks. One of the trucks is self-loading which has been used to deliver timber to the premises for the past seventeen years. Mr Barry was the principal driver of this truck. 6. On 18 June 1999 at approximately 3.30pm, Kenneth Barry was removing chains which secured a load of timber logs on the trailer of a truck driven by him and operated by K P and C J Barry Pty Limited which was parked in the log yard area of the premises. A timber log weighing approximately 680kg fell from the trailer and fatally crushed Mr Barry. 7. On 18 June 1999 Inspector Forster made the following observations at the premises: (a) An area at the rear of the premises where deliveries of logs were unloaded ("the log yard area"). (b) The ground was rough compacted dirt with numerous pieces of timber and bark lying on the ground. (c) Parked near the stacks of logs was a 'Mack Tabletop' truck with a 'Dog' trailer attached. On the truck and trailer were stacked a number of timber logs, with a vehicle loading crane fitted to the rear of the truck. The vehicle registration number of the truck was FQL-826 and of the trailer K-49910. (d) At the right hand side of the trailer, looking from the rear, there was a timber log on the ground. This log had apparently fallen from the top of the trailer. It was approximately 1000mm from the trailer at the rear and lying across the back of the deceased approximately 500mm from the front of the trailer. The fallen log was at right angles to and jammed against a stack of logs at the front of the fallen log. (e) The deceased was lying face into the ground with his head against the front wheel of the trailer and his legs doubled up underneath him. (f) The following measurements were taken: Width of 'Dog' Trailer: 2500mm Length of Tray on Truck 6840mm Length of 'Dog' Trailer 6300mm Distance between Tray and Trailer 2100mm Height of Trailer from Ground 1370mm Height of Load from Trailer 1450mm Height of Holding Bars 870mm Height of extension holding bars 570mm Overall height of holding bars 1440mm Approximate height log fell to ground 2350mm 8. On 21 June 1999 I attended the premises and observed as follows: (a) A prime mover and attached dog trailer of a log haulage vehicle parked in a north to south direction, with NSW registration number plates reading FQL-826 affixed to the prime mover and K-49910 affixed to the dog trailer respectively adjacent a stack of logs. (b) A stack of timber logs positioned perpendicular to, and adjacent the front side support wheel of this dog trailer, identified as stack No. 71 by a sign laying on the ground at the west extremity of this stack of logs. (c) One log positioned on general ground level, positioned parallel to and at a distance of approximately 3m from this dog trailer. (d) This log had an overall length of approximately 6530mm with an average diameter of approximately 360mm. (e) Rub marks on this log similar to chain indents, located approximately 1150mm from its south end and approximately 1270mm from its north end. Further rub marks similar to stanchion indents, located 860mm from it south end and 940mm from its north end. (f) Steel stanchions affixed to this dog trailer with outside dimensions of 87mm x 63mm. Steel extension pins located within the upper section of these stanchions, with an outside diameter of 50mm and 5mm wall thickness. The extension pins had been removed from the side of the truck from which the log fell. (g) A vehicle loading crane fitted to the rear of the above prime mover, positioned with its boom extended and resting on the logs loaded upon this prime mover. (h) This vehicle loading crane was identified as a: 'JONSERED 1000' serial number 68062, M/Year 03911', by a name plate affixed in a location adjacent the operator's control station, with a safe working loads of 2379kg, 1630kg and 330kg at reach distances of 4m, 6.2m and 7.6m respectively as displayed on the boom arm of the appliance. (i) A log grab device fitted to the extremity of this boom arm, identified as a '365 Cranab', by lettering on its upper support section. 9. On 21 June 1999 the Prosecutor issued an Improvement Notice number 213937 requiring the Defendant to provide and maintain such systems of information, instruction, training and supervision to eliminate or minimise risk of persons being exposed to crush injury due to the manner of unloading logs from log haulage vehicles within the log yard area of the premises. 10. As a result of the Prosecutor's investigations in this matter, the Prosecutor made the following findings: (a) Mr Barry was managing director and an employee of K P & C J Barry Pty Limited. (b) K P & C J Barry Pty Limited operated the prime mover registration number FQL-826 ("the Truck") and attached dog trailer registration number K-49910 ("the Trailer") from which the log that caused the fatal injuries to Mr Barry fell. (c) Mr Barry had driven the Truck to a property located at 270 Wattley Road, Wootton on the morning of 18 June 1999 and loaded the Trailer with approximately 50 tonnes of timber logs. At approximately 12.30pm Mr Barry drove the Truck and loaded Trailer to the premises. (d) Mr Barry weighed the load present on the Trailer at a weighbridge at the premises at approximately 2.37pm which is within the normal operating hours at the premises. Mr Barry then drove from the weighbridge to a log pile located in the log yard area of the premises. (e) Mr Barry commenced preparing the logs on the Trailer for unloading with the vehicle loading crane in the log yard area ("the unloading procedure"). A copy of a document containing some procedures for unloading logs was available at the weighbridge of the premises. Mr Barry was required to visit the weighbridge to enter details of each delivery into a computer by use of a magnetic identification card supplied by the defendant. (f) A contractor to the Defendant noticed at approximately 3.30pm that the Truck motor was on "fast idle" as it would normally be if the vehicle loading crane was being used. (g) The contractor commented to another contractor after the truck engine had been fast idling approximately one hour that this was "strange". (h) Mr Barry's body was discovered shortly afterwards beneath a log by the two contractors at approximately 4.30pm. (i) The Defendant had not provided Mr Barry with adequate assistance, training, instruction and/or supervision in safe procedures to be employed in unloading timber logs from vehicles in the log yard area of the premises. Mr Barry had attended industry training courses conducted by Training Education and Management Services ("TEMS"). State's Forests required that all contractors attend the TEMS course. (j) No assessment had been carried out by the Defendant concerning the safety and suitability of the plant and machinery used by contractors and/or their employees (including Mr Barry) in carrying out the unloading procedure. Mr Barry was re-inducted into the Defendant's site in March 1999. The induction process required Mr Barry to follow industry standards and codes and its unloading procedure, to maintain equipment in a safe working order and not to use equipment if it would result in risk to himself or others. (k) The Defendant did not properly assess the training and qualifications of contractors and/or their employees carrying out the unloading procedure at the premises. (l) There was no adequate protection or protective equipment provided to Mr Barry while carrying out the unloading procedure (such as a log restraining cage). There is no requirement for protective equipment such as a log restraining cage to be used under the industry code of practice, provided that the load is restrained by an unloading machine or by any other positive form of restraint. (m) The Defendant required contractors to hold appropriate machinery certificates and demonstrate capability in self unloading. Not all contractors demonstrated the capability to self unload to a standard satisfactory to the Defendant. Where the standard was not demonstrated contractors were prevented from self unloading by the Defendant. (n) The Defendant allowed the unloading procedure by contractors and/or their employees to take place without any supervision or assistance, where the contractor had demonstrated capability in self unloading satisfactorily to the Defendant. (o) The Defendant's emergency procedures had been successfully audited under the National Safety Council of Australia 5 Star Safety audit program. (p) The Defendant failed to ensure that its contractors and/or its employees carried out unloading procedures in accordance with the Industry Code of Practice 'Safe Loading and Unloading of Logs'. In particular, the Defendant failed to ensure that Mr Barry restrained the load by the use of some positive form of restraint prior to releasing the load security chains, and that Mr Barry was at a safe distance from the vehicle during the unloading procedure. (q) The stanchion extender pins which were in place when Mr Barry initially loaded the vehicle had been removed at the time of the accident on the premises. The absence of the said pins during the unloading procedure, and the absence of any other positive form of restraint of the load, allowed the log to fall resulting in Mr Barry's death. Unloading logs in the absence of the said pins was not in accordance with Mr Barry's usual practice. (r) The Defendant permitted contractors and/or their employees who had been satisfactorily assessed and approved by the Defendant to enter the premises after usual business hours to carry out the unloading procedure unsupervised and/or without assistance. (s) The Defendant provided contractors and/or their employees when it was requested with machinery (a front-end loader) that may have been used for the safe conduct of the unloading procedure consistent with industry codes of practice. (t) The Defendant engaged experienced and professional contractors and engaged the contractor through an induction process. The Defendant relied upon contractors in instituting safe unloading procedures. 11. In the premises, the Defendant, Weathertex Pty Limited, an employer, breached section 16(1) of the Occupational Health and Safety Act 1983 on 19 June 1999 at premises located at Masonite Road, Raymond Terrace in the State of New South Wales, in that it failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. In particular, the Defendant failed to provide a system of work that was safe and without risks to health for the unloading of logs from vehicles (including the preparations for unloading) at the log yard of the premises.

5 His Honour considered the affidavit evidence tendered on behalf of the respondent, in particular the affidavits of Paul Michael, General Manager, director and shareholder of the respondent and James Smith, the respondent's Safety Manager. He noted that the evidence tendered on behalf of the respondent demonstrated (at [13]): …that the defendant has at all times maintained a strong commitment to a comprehensive occupational and safety programme backed up by annual audits.

6 His Honour observed that following the incident, two internal inquiries had been undertaken "into both the causes of the accident and into what steps the respondent needed to take to ensure that an accident of this kind did not reoccur". The inquiries resulted in the adoption of a number of recommendations by the respondent including:

An inclusion within the Contractor's Safety and Insurance Requirement booklet a reference to unloading log trucks;

Provision and explanation of a copy of the Code of Practice to each contractor at the annual induction of contractors;

Contractors were required to complete a theoretical examination and to unload a fully loaded truck in accordance with the provisions of the Code and the company's procedures to the satisfaction of the Safety Manger.

7 Marks J commented on the defendant's submissions in the following terms (at [14]): 14 The defendant through its counsel Mr Hodgkinson SC indicated that it pleaded guilty solely because of the absolute nature of the obligation imposed by s 16 of the Act. In essence, Mr Barry was able to attend to the unloading of the logs from his company's vehicle in a safe manner without the assistance of any other person or equipment. This is because the unloading could be undertaken by using the crane attached to the vehicle. Accordingly, in a pragmatic sense Mr Barry was solely in charge of the operation and on the basis of the evidence I infer was the only person involved in attempting to unload the vehicle at the time of the accident. Mr Barry was an experienced and long-standing driver familiar with the defendant's operations and site who had performed the same operation on many occasions. The defendant at the date of the accident had an induction procedure in place and was conscious of its occupational health and safety obligations. On one view of it, the defendant was entitled to assume that Mr Barry was able to carry out the unloading operation safely and without any supervision or assistance of any kind.

8 In determining the question of the penalty applicable, his Honour reached the following conclusions at [16] - [19]: 16 The first question for determination in all the circumstances is the objective seriousness of the breach. On one view of it, every breach of an obligation imposed by the Act is serious given the potential result of injury or death within a work environment. However, having regard to the induction programme which the defendant did have in place which admittedly did not cover specifically the unloading operation and given the fact that Mr Barry had long experience and was overall assessed to be competent in and about the unloading operation and having regard to the fact that he had undergone an induction process as recently as March 1999, I do not regard the breach of the Act by this defendant in all the circumstances as being a serious one. 17 The prosecutor also relied on the fact that the defendant did not have in place any system of monitoring what was occurring in the log yard area because it took a considerable time, probably in excess of one hour, for the applicant's body to be located after the accident had occurred. To some extent a system of regular monitoring and supervision of the activities of the contractors might have enabled the defendant to have reacted more quickly to the accident, although there is no evidence available to indicate whether or not Mr Barry died instantly as a result of the injuries sustained by him. On the other hand, the assertion about a failure to supervise and monitor contractors was more directed to ensuring compliance with safe unloading procedures than regular surveillance of work areas. I regard this as a matter of peripheral significance central to the manner in which the defendant breached the Act. 18 In assessing penalty I take into account the fact as adduced by the prosecutor that this defendant has no prior convictions. Furthermore, it has demonstrated a positive and comprehensive commitment to its occupational health and safety responsibilities and has reacted positively and constructively to the unfortunate accident which has given rise to these proceedings. Through its actions the defendant expressed contrition for what has occurred. Accordingly, I am of the opinion that there is no particular utility in imposing a penalty which will have a specific deterrent on this defendant, although I am mindful of the need to ensure that any penalty has an appropriate general deterrent effect. 19 The prosecutor through his counsel properly conceded that the defendant had been cooperative with the WorkCover Authority in and about its investigation into the accident and that it had pleaded guilty at the earliest possible opportunity. The prosecutor sought orders for a moiety and costs which were not opposed by the defendant.

9 Mr S Crawshaw of senior counsel, who appeared for the appellant submitted that, notwithstanding that a sentencing judge possesses a substantial discretion, the Full Bench should intervene on the following grounds:

The sentencing judge fell into material error in respect to the application of sentencing principles;

The sentence on its face was manifestly inadequate thus disclosing error;

The sentencing judge failed to take into account matters relevant to the objective seriousness of the offence and took into account irrelevant considerations in assessing the objective seriousness of the offence; and

There was undue or unreasonable weight given to particular facts.

10 The appellant submitted that the primary factor to be considered when determining the appropriate sentence is the objective seriousness of the offence charged (see for example Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 474 - 475). Senior counsel for the prosecutor submitted that Marks J failed to take into account the following factors relevant to the objective seriousness of the offence:

The extent of the statutory mandate under s 16 of the Occupational Health & Safety Act;

The maximum penalty prescribed by Parliament for the offence was increased to $550,000.00;

The occurrence of death manifesting the gravity and seriousness of the potential risk to safety;

The nature of the offence in that it involved reasonably foreseeable risks flowing from an inherently dangerous task;

The failure by the respondent to take appropriate, available and feasible measures to prevent the obvious risks to the safety of its non-employee contractors.

11 As to the first contention, the appellant submitted that the statutory mandate under s 16 imposes the following obligations:

Employers and self-employed persons must be proactive in ensuring that their undertaking does not create a risk to the health and safety of persons including non-employees that may arise from that undertaking. The proactive nature of duty falls equally upon each and every employer or self-employed persons.

The culpability of the operator is not removed by the fact that other persons may also have responsibilities.

The operator owed a duty not only to the careful and observant person but also the hasty, careless, inadvertent, inattentive, unreasonable, foolish or disobedient.

12 As to the second contention, the appellant submitted the Court must assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided and to impose a penalty that approximately correlates upon the scale set by the legislature from zero to the maximum.

13 The appellant further submitted that the Court is required to give effect to the obvious intention of the Legislature, as demonstrated by the increase of the maximum sentence for this offence, that the existing sentencing patterns are to move in a sharply upward manner: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209.

14 It was also submitted that the significant increases in penalty which occurred from 1996 emphasise the importance of both specific and general deterrence. Although his Honour purported to be mindful of the need to ensure that any penalty has an appropriate general deterrent effect, the appellant submitted that the low penalty imposed by his Honour is manifestly inadequate in deterring others and to encourage full compliance with the Occupational Health and Safety Act by others.

15 As to the fourth contention, the appellant submitted that his Honour failed to take into account adequately or at all the gravity of the potential risk to safety flowing from a breach: Lawrenson Diecasting at 476.

16 It was also submitted that the occurrence of death or serious injury manifested the degree of seriousness of the relevant detriment to safety and accordingly, the degree of seriousness of the offence. The appellant submitted that the substance of the offence is not merely the dangerous system of work; it is the dangerous system in association with the loss of human life or occasioning grievous bodily harm: see, for example, R v Musumeci (unreported, New South Wales Court of Criminal Appeal, 30 October 1997, at 7). In the present case, it was submitted that the agreed statement of facts establishes that, as a result of the failure to provide systems of unloading timber with the use of positive restraints, the deceased was fatally injured.

17 The appellant submitted that the degree of foreseeability of relevant risk is a significant factor to be taken into account when assessing the level of culpability of the respondent: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8. In the present case, the appellant submits that, objectively, the risk of serious injury from a log falling from a vehicle during an unloading operation that was performed in absence of some form of positive restraint, is reasonably foreseeable. Further, the risk of injury to the respondent's contractors, including Mr Barry, from the accidental dislodgement of a timber log in consequence of a failure to follow the relevant industry code in respect to the unloading procedure must be regarded as reasonably foreseeable, particularly in circumstances where the requirements contained in the code were not addressed in the induction program and in the absence of any enforcement or monitoring compliance system.

18 The fact of Mr Barry's long experience does not absolve, it was submitted, the respondent from taking the requisite proactive approach to safety, given that the purpose of the Occupational Health and Safety Act was to introduce and maintain safe working practices so that accidents are prevented by obliging employers to protect against human errors: WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257. Further, the appellant submitted that his Honour's view that Mr Barry "was the author of his own misfortune" goes to the precise manner in which the accident occurred. This, it was contended was an element peripheral to the relevant factual circumstances amounting to the respondent's breach of the Occupational Health and Safety Act: Haynes v CI &D Manufacturing Pty Ltd (No 2) (1995) 60 IR 149 at 182.

19 The appellant submitted that it will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Lawrenson Diecasting Pty Ltd at 476.

20 In the present case, there were appropriate and feasible measures available, it was contended, as demonstrated by those taken by the respondent after the accident involving Mr Barry, including for example, the establishment of stringent rules involving the use of restraints on a load of timber prior to releasing the securing chains during the unloading and the dissemination and establishment of mandatory compliance with the relevant industry code.

21 The appellant submitted that his Honour erred in taking into account irrelevant considerations in assessing the objective seriousness of the offence. It was submitted that excessive weight was given to Mr Barry's prior experience and familiarity with the respondent's undertaking. It was contended that his Honour's statement, "[o]n one view of it, the defendant was entitled to assume that Mr Barry was able to carry out the unloading operation safely and without any supervision or assistance of any kind", was tantamount to an assertion that the respondent may be entitled to largely 'outsource' (to its timber suppliers, as it were) its obligations under the Occupational Health and Safety Act and could be taken as effectively absolving the respondent from its well settled duty to "exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace": WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. Although it was open to his Honour to have regard to the previous experience of Mr Barry, the appellant submitted that it had been established that in respect to s 15 (and hence also in relation to s 16) that the obligations imposed are stringent and the provisions limit considerably the ability to rely upon previous experience as to either liability or culpability: Ferguson v Nelmac at 210.

22 The sentencing judge erred, it was submitted, in taking into account the respondent's induction programme which, on the evidence and by his Honour's own account, failed to address the risks to safety arising from the unloading operation the subject of the charge. 23 The appellant submitted that his Honour's finding as to the peripheral nature of the respondent's failure to monitor and ensure adherence to safe unloading procedures by way of supervision and the like is contrary to authority which has established that the Occupational Health and Safety Act requires employers not merely to establish safe procedures, but also to sufficiently enforce and promulgate such procedures: Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 at 75.

24 Finally, the appellant submitted that his Honour's finding that the respondent expressed contrition for what occurred is somewhat inconsistent with the respondent's avowed position that it pleaded guilty solely because of the absolute nature of the obligation imposed by s 16 of the Occupational Health and Safety Act.

25 It was submitted that it is well established that the subjective factors in mitigation of any penalty are to rank in importance well behind the nature and quality of the offence and the clear policy of the Occupational Health and Safety Act in relation to the establishment of safe standards of the protection of the workforce: Ferguson v Nelmac at 208.

Respondent's submissions 26 Mr B Hodgkinson of senior counsel who appeared for the respondent submitted that the decision below does not contain any appellable error given that the discretion was exercised properly and in accordance with sentencing principles. The factors raised by the appellant's submissions go to matters within the discretion of a judge upon sentencing and the discretion exercised in the decision below was within recognised parameters.

27 Further, the respondent submitted that the Commission on appeal has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that an error has been shown in the original sentencing process: R v Allpass (1993) 72 A Crim R 561.

28 It was submitted that his Honour was correct in finding that the gravamen of the charge as it related to the operation of the undertaking of the respondent, was that Mr Barry was solely in charge of the operation and was the only person involved in attempting to unload the vehicle at the time of the accident.

29 The respondent agreed that, in the sentencing process, primacy is to be given to the objective seriousness of the offence, but submitted that the gravity of the consequence of a breach, including the occurrence of a serious or fatal injury, does not dictate definitely the amount of penalty: Inspector Tyler v Sydney Electricity (1993) 47 IR 1.

30 The respondent submitted that, while "the culpability of an operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally", this is only relevant "where an operator continues to operate in circumstances that prevent an obvious and known risk to persons working at the site": WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at [65]. The respondent submitted that it had satisfied the duty to be proactive in all the circumstances that were reasonably foreseeable.

31 On the issue of general deterrence, the respondent submitted that, given its good industrial character, the level of penalty imposed, together with the fact of prosecution in itself, is more than sufficient to encourage the respondent's level of diligence in health and safety matters.

32 The appellant's submission that the agreed statement of facts established that the deceased was fatally injured as a result of the failure to provide systems of unloading timber was, in the respondent's submission, wrong. The respondent submitted that the actions of Mr Barry could in no way be seen as inadvertent but rather reckless and his Honour was correct in concluding that Mr Barry "was the author of his own misfortune".

33 The respondent accepted that the degree of foreseeability of risk is a significant factor to be taken into account in assessing culpability but submitted that, in this case, the reasonable observer would not have foreseen any risk arising out of the respondent's system of work, if adhered to, since Mr Barry was solely involved in the unloading process and the log fell because Mr Barry had removed the stanchion extension pins before removing the chain which held the load. The respondent submitted that Mr Barry essentially chose to operate in an unsafe manner and no amount of pro-activeness on the part of the respondent could have prevented such action.

34 It was submitted that there was no obvious or foreseeable risk to safety prior to the accident and the "simple and appropriate measure" suggested by the appellant, being rules, codes, notification and supervision, could not and would not have prevented the accident from occurring.

35 The respondent recognised that it could not "outsource" its obligations under the Occupational Health and Safety Act but submitted that the central risk to safety or primary casual factor in this case was Mr Barry's own actions. It was submitted that the respondent had no control over, nor was the incident caused by any failure on the part of the respondent.

36 The respondent submitted there were several subjective factors which could have and were taken into account by his Honour in deciding on an appropriate sentence including:

The respondent had no prior convictions and its industrial record was significant given the industry in which it operated;

The respondent had demonstrated a positive and comprehensive commitment to its occupational health and safety responsibilities;

The respondent responded to the alleged breach at the time by effectively implementing further measures to attempt to overcome further breaches;

The respondent had also been cooperative with the WorkCover Authority in its investigations following the accident.

37 In its supplementary written submissions, the respondent submitted that its business required drivers who unloaded logs in the log yard to commit to safe practices as part of their commercial terms. This amounted to a general instruction which was monitored in a variety of ways by the respondent including an annual safety audit process conducted by the National Safety Council of Australia and other audit procedures.

38 It was further submitted that Mr Barry had been identified as a driver who was able to self-load and that the unloading of logs in the absence of a positive restraint in the form of stanchion extension pins was not in accordance with "Mr Barry's usual practice".

39 Thus, it was submitted, the Full Bench needed to consider the question - "what is the culpability of the respondent in all the circumstances in relation to the breach to which it pleaded guilty?". In this respect, it was contended, that the death of Mr Barry was occasioned in circumstances in which he, being a longstanding driver experienced in self-loading of the site, breached safe loading practices, contrary to the general expressed instructions and the contractual obligations of the respondent. Mr Barry failed to use either of the two forms of restraints available to him to properly restrain his load prior to commencing the unloading procedure.

40 It was also submitted that the Court should have regard to the fact that the respondent had knowledge of Mr Barry's longstanding experience and that it had conducted general safety audits (achieving, in this respect, the highest rating of five star). It was contended that Weathertex had only recently gained control of the premises as a result of the purchase of the business from CSR.

41 The appellant disagreed with the respondent's submissions on the relevant gravamen of the charge and submitted that the prosecutor did not concede that it was reasonable to assume that Mr Barry himself removed the stanchion pins or extender bars. His Honour was not correct, it was submitted, in finding that based on Mr Barry's experience, the respondent was entitled to assume that Mr Barry was able to carry out the unloading operation safely and without any supervision.

42 It was submitted that the respondent failed to deal with the far-reaching scope of its obligations under s 16 and its consequent degree of culpability in the circumstances, notwithstanding Mr Barry's prior experience.

43 The appellant submitted that the respondent's submissions on deterrence were relevant only to specific deterrence and did not deal with the principles of general deterrence as stated in Capral Aluminium limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at [81]. Reference was made, in particular, to the Full Bench's observations in that matter at [61] - [62], that deterrence should be a matter of significant weight in the sentencing process where the relevant offences are difficult to detect, as was the case here.

44 The appellant submitted that the respondent placed undue emphasis on the precise circumstances of the accident itself where, in fact, the relevant risk to safety was the non-compliance with the safety measures laid down in the Industry Code of Practice, particularly in its induction program.

45 The appeal is brought pursuant to s 196 of the Industrial Relations Act and s 5D of the Criminal Appeal Act. Section 5D of the Criminal Appeal Act provides, as modified by s 196(3) of the Industrial Relations Act 1996, the Full Bench of the Court "may, in its discretion vary the sentence and impose such sentence as to the said court may seem proper." Further, the prosecutor has a right to appeal and is not required to seek leave.

46 Thus, although under s 5D, leave to appeal is not required, any re-examination of penalty must be approached with caution: Inspector Ian Batty v Graincorp Operations Limited [2002] NSWIRComm 49 at [4].

47 Generally speaking, an appellate court must identify a clear and demonstrable error at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340 - 341 (Kirby J) and 330 (Gummow and Gaudron JJ); Wong v R (2001) 185 ALR 233 at 263, Batty v Graincorp at [4] and Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319 at [6]

48 There are some differences in emphasis as to the principle of restraint in Crown appeals. See for example the comments of Kirby J in Dinsdale v The Queen at 341 - 342 and in Wong v R at 263 where his Honour refers to the principle of restraint as being well established. This may be compared with the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325[4] where their Honours indicate that the principles in House v The King (1936) 55 CLR 499 apply "both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness". We refer also to the summary of principles set out by the New South Wales Court of Criminal Appeal in R v Allpass and considered in Wright J's judgment in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 at 393-394.

49 In Mayo-Ramsay v Allen Taylor, the Court was divided on the nature of error that would warrant appellate intervention in prosecution appeals. Hungerford and Peterson JJ at 402 held that the relevant test was whether the error of principle amounted to a "circumstance which is sufficiently rare and exceptional as to warrant intervention in the limited circumstances available on appeal". Wright J, dissented, holding that the majority view was too restrictive, and that the relevant consideration was whether "there is an error of principle ... manifested in either error on the face of the judgment on sentence or which can be inferred from the manifest inadequacy of the sentence imposed" whilst emphasising the appeal court's "overriding discretion not to increase the sentence [and] giving appropriate weight to the significance of the circumstance of double jeopardy generated by a Crown appeal" (at 393, 395).

50 In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 706, the Full Bench noted the division of opinion in Mayo-Ramsay v Allen Taylor but found it unnecessary to resolve the different approaches for the disposition of the appeal. However, the Full Bench referred to the principles stated by Barwick CJ in Griffiths v The Queen at 310 (which include that such appeals should be a rarity) and the principles as to Crown appeals set out in R v Allpass at 562 - 563.

51 The meaning of manifest inadequacy of sentence was discussed in the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325 as follows: Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

52 It is apparent from their Honours' discussion that there is a distinction between specified material error in the sentencing judge's approach or reasoning (House v The King errors) and error on the face of the judgment demonstrated by the sentencing judge's conclusion, such as a manifestly inadequate or excessive sentence.

53 The identification of either type of error is sufficient to enable intervention by an appellate court. The appellate court is not required, in our view, to find an additional element of novelty, as suggested by Hungerford and Peterson JJ in Mayo-Ramsay v Allen Taylor. Clearly, however, an appellate court in a Crown appeal has an obligation to act with caution or restraint, given the principle of double jeopardy and the Court's overriding discretion not to intervene: see Kirby J's observations in Dinsdale v The Queen (2000) 202 CLR 321 at 341 - 342 and in Wong v R (2001) 185 ALR 233 at 263; see also R v Allpass at 562 - 563, the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 299 and Batty v Graincorp.

54 The importance of the principle of double jeopardy particularly in re-sentencing has been acknowledged and applied by this Court on numerous occasions. See, for example, Batty v Graincorp at [5], where the Full Bench dealt with a Crown appeal against inadequacy of sentence. Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94 at [3], [8]; Bultitude v Grice (No. 2) [2002] NSWIRComm 234 at [7]; Legge v Coffey (No 3) [2002] NSWIRComm 30 at [7]; Vierow v Ridge Consolidated Pty Ltd (No 3) [2002] NSWIRComm 345 [5]; Profab [41] - [45], Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [17] are examples of cases of Crown appeals against acquittal where the principle has been applied.

55 It is well established that an appellate court in re-sentencing, or deciding whether to re-sentence an offender, should have regard to the principle of double jeopardy. The application of the principle of double jeopardy provides for an imposition of a sentence that is somewhat less than the sentence the appellate court considers should have been imposed at first instance (R v Allpass at 562), or at the lower range of available sentences: Dinsdale v The Queen at 341; Profab Industries Pty Ltd.

56 The general principles to be applied in sentencing offenders under the Occupation Health and Safety Act 1983 are well established and were set out comprehensively in Lawrenson Diecasting. See also Capral Aluminium at [53]; State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 at 230 [24]; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 297 and Profab Industries Pty Ltd at 721.

57 The primary factor in assessing the level of penalty to be imposed is the objective seriousness of the offence. The Full Bench in Lawrenson Diecasting stated at 475: As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.

58 It is well settled that the general duties imposed by the Occupational Health and Safety Act upon employers are absolute. This Court has frequently reiterated that the strict duties imposed require the employer to be proactive and not merely reactive in ensuring safety in the workplace: See for example Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at 87 - 88. The submission, as advanced here by senior counsel for the respondent, to the effect that the respondent had only entered a plea of guilty because of the absolute nature of the offence does little to assist in the sentencing process and is likely, as it may well have done in this case, to result in error in the sentencing process. Sentencing must be considered in the light of the plea being entered by the defendant in relation to a charge and then having regard to both the nature and quality of the offence and subjective factors bearing upon the question of penalty.

59 Having regard to these principles, and bearing in mind the decision in Dinsdale, we consider that the sentence in this matter was manifestly inadequate.

60 His Honour failed to give sufficient weight, in our view, to the agreed facts in evidence which demonstrated that the respondent had failed to take proactive measures to ensure that contractors engaged in unloading logs did so only in circumstances where those logs were adequately restrained in accordance with the industry code of practice. The agreed facts contained an acceptance by the respondent of the conclusions reached by the Inspector investigating the matter. The respondent thereby conceded that it had not adequately trained, instructed and supervised the contractors to ensure that they carried out the methods which the respondent contended constituted the usual practice at the workplace. Giving due allowance for the fact that there were standard procedures which required the use of a restraint in unloading the logs and noting further that the respondent had in place general instructions admonishing drivers to adopt "safe practices", it is clear that the respondent failed to engage in processes which ensured adherence to the safe unloading procedures identified in the code. Too much reliance was placed by the respondent upon "acquired" knowledge by contractors and non-specific directions through training and induction programmes and "self-loading" procedures.

61 The fact that Mr Barry may have been experienced and may have departed from usual practices, procedures and even instructions is a factor that will mitigate the objective seriousness of the offence but does not exonerate the respondent in any substantial way as seems to be suggested by the sentencing judge when his Honour commented that "the defendant was entitled to assume that Mr Barry was able to carry out the unloading operation safely and without any supervision or assistance of any kind". As was stated in Riley v Australian Grader Hire at [15]: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. See also WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International Australia Pty Limited (2001) 105 IR 81 at 45; Inspector Webb v Namoi Cotton Co-Op [2003] NSWIRComm 29 and WorkCover Authority of NSW v TRW Steering and Suspension Australia Limited [2001] NSWIRComm 52 at [13].

62 It is not strictly necessary in these circumstances to identify the particular errors which result in a conclusion that the sentence is manifestly inadequate. However, we agree with the submissions of Mr Crawshaw SC that errors are disclosed in the judgment at first instance, as follows: 1. His Honour placed too much weight upon the existence of the induction programme operated by the respondent which, as found by him and as disclosed in the evidence, did not specifically address the safety risks associated with the timber unloading process. This error was indicative of his Honour giving too much weight overall to the general and non-proactive measures taken by the respondent, rather than focusing more closely upon all of the obligations under the Act which mandated more extensive and specific action by the respondent, particularly having regard to the applicable industry code. 2. His Honour did not give any weight to general deterrence in accordance with authority: Capral Aluminium at [61] - [62] and [81]. This was plainly a matter where general deterrence was required given the need to ensure the provision of safe unloading procedures generally and, in particular, in the timber industry. (We note that the prosecutor raised no complaint about his Honour attaching little significance to specific deterrence. We make no further observations about the matter, although we would wish to re-emphasise, as the Full Bench did in Capral , that this consideration will normally be an important factor in sentencing under the Act). 3. His Honour erred by attaching no significance to the fatality arising from the accident. This was relevant to considering the seriousness of the risk occasioned by the respondent. See for example Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority (NSW) (Inspector Kelsey) v University of Sydney (unreported, Matter No CT 1280 of 1995, 2 April 1997 at 10), Capral at 650 and WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 428 - 429. We consider that the fatality in this case was indicative of the risks to safety relevant to the assessment of the gravity of the offence. 4. We also consider his Honour was in error in describing the failure of the respondent to monitor and supervise the work of the contractors in unloading timbers as being of "a peripheral nature". It is essential in ensuring compliance with the Act to sufficiently enforce and promulgate procedures and practices: Genner Constructions at [68].

63 In these circumstances, we consider that the appeal should be upheld. We do not consider there is any basis to excuse our discretion not to re-sentence the respondent.

64 It falls to us to assess the appropriate penalty in this matter. In that regard we consider that the offence is a serious one, although we have given due weight to the fact that the respondent had established practices and procedures which, whilst inadequate as we have found, were directed to securing the safety of contractors unloading timber at the respondent's premises. We have also taken into account the various subjective factors referred to by Marks J and some particular considerations that were identified in the respondent's submission, such as its generally good occupational health and safety record, the general practices and procedures adopted by it in relation to occupational health and safety at its workplace and the fact that it had only recently gained control of the premises as a result of the purchase of the business from CSR. In addition to a discount in penalty resulting from these subjective features, we have reduced the penalty by having regard to the plea of guilty and to the principle of double jeopardy. We determine that a combination of those factors warrants a penalty of $70,000, noting that the maximum penalty is $550,000.

65 We order: 1. The appeal is upheld. 2. The penalty imposed by Marks J on 26 July 2002 in Matter No 3805 of 2001 is quashed. 3. In lieu thereof, the respondent is fined the sum of $70,000 with a moiety of such fine to be paid to the appellant. 4. The appellant shall have its costs on the usual basis for the proceedings at first instance and on appeal as agreed, or in default, as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (91 paragraphs)

Parties

Cases Cited (35)

Cited By (13)