Inspector Neil Simpson v Carrst Pty Limited

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

Inspector Maurice Vierow v Linddales Pty Ltd [2007] NSWIRComm 255 Maddaford v CSR and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104 Winchester (1992) 58 A Crim R 345 WorkCover Authority of New South Wales (Inspector Ankucic) v Mc Donald's Australia Limited and Another (2000) 95 IR 383

PROSECUTOR: Mr P M Skinner of counsel Carroll & O'Dea Lawyers (Mr G Phillips) LEGAL REPRESENTATIVES:

DEFENDANT: Mr R S Warren of counsel Ebsworth & Ebsworth Lawyers (Mr M Diamond)

Inspector Neil Simpson v Carrst Pty Limited (formerly known as Carrington Steel Pty Ltd)

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

1 The defendant Carrst Pty Limited (formerly known as Carrington Steel Pty Ltd) has pleaded guilty to an offence under s 11(1) of the Occupational Health and Safety Act 2000 (the Act). The offence arises out of an incident on 6 October 2004 when Hermann Leonhard Hoetzer, a builder, and John Anthony Revell, a labourer, were painting a large diesel storage tank at the Newcastle Shell Fuel Terminal. The two men at the time were standing in the work platform safety cage of an elevated work platform (EWP). The machine was owned by the defendant and had been hired out to Hancock and Owen Services Pty Ltd under a hire agreement for the period 6 September 2004 until 6 October 2004. Messrs Hoetzer and Revell were employees of Hancock and Owen Services. 2 At about 4.00pm on 6 October the EWP collapsed. The cage in which the two employees were located was at the time about 8 metres above ground. Both men fell to the ground as a result of the collapse and sustained very serious injuries. Mr Hoetzer fractured his left ankle, broke five ribs, punctured a lung, fractured and dislocated his left shoulder, fractured his collarbone and vertebrae, sustained severe bruising to both feet, lacerations to his head and damage to his teeth. Mr Revell suffered brain injury, a fractured skull, eye and shoulder injuries, crushed left foot and ankle, bruising to both legs, and a broken bone in his ear which has affected his balance and hearing. Both men were unable to return to work until some time in September 2005. 3 The cause of the collapse was a large metal pin connecting the tower lift cylinder to the turntable of the EWP, which became dislodged. The pin should have been held in position by a smaller pin known as a grooved metal retaining pin which passed through a hole in the larger pin. The larger pin was designed to pass through two metal bosses, one welded to the turntable and the other welded to the tower lift cylinder. After the collapse of the EWP, the smaller pin was found protruding from the bottom of the boss on the turntable. 4 This matter was set down for a defended hearing for four days to commence on 2 July, 2007. On the first day of hearing a formal plea of guilty was entered to the charge. The offence, which is under s 11(1) of the Act, alleges that the defendant failed to ensure the safety of persons using the EWP by failing to ensure that the EWP supplied to Hancock and Owen Services was safe and without risk to health when properly used. The charge is particularised in the following way:

The defendant failed to ensure that the EWP would not collapse whilst in operation;

The defendant failed to repair and maintain the EWP so that it would not collapse whilst in operation.

5 The EWP was manufactured by JLG Industries (Australia) Pty Limited (JLG) in 1989. It was commissioned on 31 August 1989. JLG serviced the EWP as part of a service contract until it was purchased by the defendant in 1995. At the time it was about six years old. The machine was predominantly used by the defendant in its workplace. On occasion it was rented to clients such as Hancock and Owen Services for use. According to Trevor Gasson, who was a working director of the defendant at the time of the offence, the EWP was in operation at an approximate rate of 200 hours per year. The defendant kept a logbook which recorded routine maintenance on the EWP. The logbook was not up to date at the time of the incident with the last recorded entry made on 5 May 2003. Mr Gasson was not aware of the existence of any other logbook although he believed that there were other internal records. Later Mr Gasson was able to produce dry hire cards, some service sheets and work orders. These records were apparently created each time the EWP was hired out. This occurred on approximately twelve occasions, mostly to Hancock and Owen Services. Each time the machine was hired out it underwent a series of tests carried out by the defendant. The content and extent of those tests is not clear on the evidence. On 12 August 2004 the defendant engaged a company, ETRS Pty Ltd, to perform an ultrasonic and visual inspection of the travel tower of the EWP. According to the results, the inspection detected no cracking in a number of bolts, pins, the chassis, boom and turret sections. 6 Australian Standard 2550.10-1994 sets out an inspection and maintenance programme for EWPs. The programme consists of:

(a) routine maintenance which must be carried out every three months

(c) major inspection which must be carried out after ten years of service and every five years thereafter. 7 According to the evidence, the EWP had not had a 10 year major inspection as recommended by the Standard. It had not, in fact, in its 15 years of operation, undergone any major inspection, According to Mr Gasson, not only was the defendant aware of this, but it had made a deliberate decision not to subject the EWP to a 10 year inspection. In an interview Mr Gasson explains the circumstances:

Were you aware that the EWP was overdue for a 10 year major Inspection as recommended by the Australian Standard for Elevated Work platforms, AS 2550.10? A 80. Yes. When did you become aware of this? A 81. It would be some time ago. I guess that would be several years I suppose. For what reason was this inspection not done? A 82. The issue was discussed and due to the utilisation of the machine and checks and balances over (sic) period of time it was decided not to do the ten year inspection. Who was involved in that discussion? A 83. Maintenance people and their advice was to the management. 8 In a report which forms part of the evidence, Dan Leavy, a civil and structural engineer employed by WorkCover, explained the purpose behind, and the reasons why, the Standard recommended a regime of inspection and maintenance of the EWP: The intention of these inspections and maintenance is to ensure problems that may have arisen with an EWP are identified and rectified to enable it remain in service. As such, each type of inspection is, in turn, more onerous, and culminates with the major inspection which, unlike the other inspections, requires an EWP be stripped down to the extent necessary to access those items that cannot be otherwise inspected. (A major inspection is commonly referred to (sic) industry as a 'strip-down inspection'.)

The requirement in the Standard was clear - every machine must undergo the ten-year major inspection and the subsequent ones at five-yearly intervals. This had the effect of improving the safety of EWP as a whole, either by ensuring the necessary maintenance was carried out on older machines or by forcing them from the industry. Indeed, a move to have the requirements of the major inspection lessened in 1997 was rejected by the industry.

There is no doubt that a major inspection represents a considerable cost to its owner, both in the inspection and subsequent maintenance and the time the machine is out of service. It is important to understand the reason for the inspection and its timing.

Most machines, certainly complex ones, are designed with a specified design life , which can be considered as the period they can remain in operation with a high level of assurance that their critical components will continue to function effectively and safely. For some machines, especially those in continuous service, this design life can be equated to a calendar period; but for others, such as cranes, it relates to the number of load cycles (lift, move, lower) they go through. Other factors influence this, such as the operating environment.

Once an EWP reaches the end of its design life, it can no longer be operated with an assurance that the critical components will continue to function as intended. When this point is reached, the EWP has effectively reached its 'use-by date' and a person has a choice - either scrap the EWP, or undertake a rigorous inspection to determine what maintenance is required to restore at least some of its design life and ensure it can resume operation without being a risk to health and safety.

This is the purpose of the major inspection specified in AS 2550.10. The major inspection is accordingly onerous, and it is intended to ensure that all critical components, especially ones whose failure would result in an accident, are inspected and maintained, Where necessary, the EWP must be stripped down to gain access to components to enable the requisite inspections and tests be carried out. These components are listed in Appendix A of the Standard, and include boom extension and retraction mechanism (which would include the cylinder support pins like the one that failed on the EWP involved in the accident). The Standard cannot specify the actual tests that should be undertaken as these are dependant upon a number of factors, but instead gives the general guidance on this and relies on the expertise of the person undertaking the inspection to ensure the appropriate tests are made.

The reason why the Standard is so absolute about the ten year period is that without very detailed records, it is virtually impossible to determine exactly how much of an EWP's design life has elapsed. As the machines are only intended for a ten-year design life, it is reasonable to expect the major inspection occurs then rather than risk the EWP remaining in operation after it has elapsed. At the time the Standard was published - 1994 - there was clear evidence that the general level of maintenance records in the industry were (sic) inadequate, hence the insistence on the ten year timeframe. 9 Mr Leavy also undertook an examination and analysis into the causes of the collapse of the EWP. His conclusions were expressed in the report as follows: The item that failed was a lower lift cylinder pin that supported the cylinder that raises and lowers the boom. This component is critical to the safe operation of an EWP as should it fall, the boom will collapse and persons occupying the platform will be subject to the risks associated with falling. It is probably more critical than a platform-levelling pin as fall arrest systems worn by persons on the platform to arrest a fall form (sic) the platform provide no protection in the event of such a failure. As such, the pin should have been examined and tested to determine its condition; and where necessary, replaced. Such an examination and test should have been carried out as part of the major inspection.

It is evident that the EWP involved in the accident did not undergo a major inspection, nor was an equivalent alternative inspection, testing and maintenance regime developed and applied to ensure its ongoing safe operation. Indeed, not only has the major inspection not been carried out, but the operational timeframe of more than 15 years spans a period where two such inspections are required. this effectively means that the machine has had its operational life extended to at leat twice that for which it was designed and manufactured.

The accident occurred because the pin on the EWP failed from overuse - it had exceeded its effective design life. A major inspection carried out in accordance with the requirements of AS 2550.10 would either have identified the wear-and-tear on the pin and replaced it, or replaced it as part of the maintenance required as part of the inspection.

The fact that the EWP continued operating through the period when two such major inspections are required increased the risk of such a failure to the extent that it was inevitable.

10 It is not suggested (nor could it be) that the recommendations contained in the Standard are mandatory. Rather, the relevance of the recommendations to the present proceedings is to emphasise the importance of regular inspections and maintenance to ensure the safety of the EWP and the safety of those persons who operated it. 11 It was conceded by the prosecutor during oral submissions that the defendant at the time of the offence had in place a number of systems designed to ensure that the EWP was safe to use. The defendant, for example, at the time of the offence had developed two manuals, a quality assurance manual and an occupational health and safety rehabilitation manual. The latter manual sets out various quality and safety procedures. One of the procedures dealt with the hiring out of equipment such as the EWP. Requests for hire service were entered into the Daily Hire Book, and a site inspection was undertaken if deemed necessary. Jobs were allocated to operators by means of a Work Method Statement. Any problems with the equipment had to be reviewed and rectified before work commenced. Upon arrival at a customer's site, the EWP operator was responsible for completing the Work Method Statement, and, where appropriate, discussing risk control measures. Once the allocated job was deemed safe the operator was required to check all lifting gear accessories. Dry hire of the EWP followed a similar procedure. The plant controller or plant manager completed many of the tasks which would have been completed by the EWP operator. Maintenance in the field requirements were also set out in the manual. Any equipment failures or maintenance problems had to be recorded in a plant log book. All relevant documentation required to be completed in relation to allocation of tasks had to be handed to the plant manager or maintenance leading hand for checking at the end of each shift. Once jobs were completed, work orders had to be initialled and returned to the plant manager or the maintenance leading hand. Log books, if the machines were required to be checked monthly, and any outstanding faults identified were recorded on a monthly inspection form. In an affidavit of Harry Rex Harries, a director of the defendant at the time of the offence, further procedures in place at the time of the offence are referred to. Mr Harries says that the various procedures and policies set out in both manuals were subject to monthly audits undertaken by a consultant, Dan Brooker. An audit status log is annexed to Mr Harries' affidavit which reveals that audits were undertaken during the period 31 October 1997 until 14 September 2005. An audit report dated 30 August 2004, also annexed to the affidavit, contains the following summary: System Purchasing according to precedent. Internal audits accounting for all non-conformances. However discrepancies being recorded in accordance with 8.1 and 8.3

(8.1 concerned employee responsibility for the identification and recording of improvements, incidents, discrepancies etc in a register. 8.3 concerned monthly review of this register by a quality co-ordinator). 12 These systems, although impressive, were only partly implemented in relation to the EWP involved in the incident on 6 October 2004. As earlier observed, the log books, for example, were not up to date. This point was noted in the report of Dave Acton, a metallurgist and welding engineer employed by CCI Pope Ltd. The report was commissioned by the defendant following the accident. The last entry in the routine maintenance logbook for the EWP prior to the accident was 5 May, 2003. Some rental records existed up to 25 August 2004. Nevertheless, as Mr Acton in his report suggests, the systems in place and in operation at the time of the offence, demonstrate a history of compliance in relation to the EWP. The systems in place therefore serve to mitigate the otherwise objective seriousness of the offence to which I will come in more detail shortly. The failure to repair and maintain the EWP falls for assessment against the risk to safety and the very grave consequences which were likely in the event of an accident. Mr Leavy placed the risk to safety in perspective when he referred in his report to "high-risk plant", the failure of which, "would result in catastrophic consequences to the operator and/or others affected by its operator". In the present proceedings the very serious injuries suffered by Messrs Hoetzer and Revell were a direct result or manifestation of the risk to safety caused by the failure to properly maintain the EWP. These circumstances trigger the application of the well-known principle that although the fact of injury alone does not dictate the seriousness of an offence, it may indicate, as it does here, that the breach of the Act, had every prospect of serious consequences: Maddaford v CSR and Mulgoa Quarries Pty Limited [2004] NSWIRComm 337 at [17] [18] [23]; WorkCover Authority of New South Wales (Inspector Ankucic) v Mc Donald's Australia Limited and Anor (2000) 95 IR 383 at [428]; Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [32]. 13 The risk to safety (as a result of the failure to repair and maintain the EWP) was also reasonably foreseeable. This is evident from the statements of Mr Gasson that he was aware for some years that the EWP was overdue for its 10 year major inspection as recommended by the Standard. In addition, JLG's Service and Specification Manual in the introductory section headed "Maintenance Safety Precaution" contained the warning:

Failure to comply with safety precautions listed in this section may result in machine damage, personnel injury or death and is a safety violation. 14 The defendant knew the age of the machine and the recommendations that it undergo a major inspection after 10 years and every 5 years thereafter. Given that EWPs are utilised by persons working at heights (in this case at a height of approximately 8 metres) the risk to safety occasioned by the collapse of the machine or other defect emerging as a result of a failure to properly repair and maintain it, is an obvious one. These matters aggravate the objective seriousness of the offence. 15 General deterrence is also an important consideration in the circumstances. There have been a number of judgments in this jurisdiction where the failure to repair or maintain machines such as EWPs, cranes and hoists has caused serious risks to the safety of persons operating the machinery or working in the vicinity. Mr Leavy, in his report, for example, adverted to the risk to safety posed by the use of EWPs which had not been properly maintained. According to Mr Leavy AS 2550.10 was introduced in 1994 to overcome the problem by proposing and recommending a major inspection of an EWP after 10 years of service to be repeated for every 5 years of subsequent service. The fact that the safety of workers has again been placed at risk in relation to the operation of these machines indicates that the problem is ongoing. Constant reinforcement of the importance of properly maintaining EWPs and similar machinery is therefore imperative in order to reduce the risks posed by this type of machinery. 16 In relation to specific deterrence the evidence indicates that the defendant has ceased to operate. The prosecutor conceded in oral submissions that the defendant is, "going out of business". According to the affidavit of Harry Rex Harries the defendant sold its business on 9 June 2005. At that time the defendant operated under the name, Carrington Steel Pty Ltd. On 5 July 2005 it changed its name to Carrst Pty Ltd. Under its present name it has not operated any business and has only one asset, namely its proceeds in a bank account. These proceeds have been set aside in order to pay any "reasonable penalty" that may be imposed by the Court in these proceedings as well as associated costs. 17 These circumstances suggest that the risk of re-offending is non-existent. There therefore seems little utility in including in the penalty to be imposed, a component for specific deterrence, and I decline to do so. 18 The objective seriousness of the offence has also been considered by reference to the maximum penalty in respect of the subject charge, which by reason of the absence of prior conviction, is $550,000. 19 The defendant is entitled to leniency on the basis that it has no prior convictions. The defendant entered a plea of guilty, however it is not contended that the plea was entered at an early stage of the proceedings. The plea, in fact, may be described as a "late plea", being entered on the first day of the defended hearing. Nevertheless the defendant is entitled to some discount of the sentence for having saved the Court the time and costs involved in hearing the matter which had been set down for four days. Applying the principle in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104, I consider the appropriate discount for the utilitarian value of the plea is 10 per cent. The defendant is also entitled as a discrete matter from utilitarian considerations to leniency on the basis that its plea of guilty is an indication of contrition: Winchester (1992) 58 A Crim R 345 at 350. 20 The defendant also co-operated with WorkCover in the investigation of the incident. A regime for checking all machinery and equipment of a similar mechanical design was implemented immediately following the accident. 21 All of these subjective considerations will be taken into account in the defendant's favour when assessing penalty. 22 The defendant also relies, in mitigation of its culpability, on what it says was the culpability of JLG in relation to the offence. It should be noted at the outset that JLG has not been charged with an offence in relation to the incident of 6 October 2004. JLG was the manufacturer of the EWP involved in the incident. 23 The culpability of JLG in the offence is said to be based primarily on the contents of a facsimile sent to the defendant by JLG after the accident. The facsimile purports to attach information on improvements made by JLG sometime in 1989 to the same model EWP purchased by the defendant and involved in the accident. The improvements made consisted of replacing a "grooved pin" with a bolt and nut mechanism. The Court was informed that the grooved pin was the same type of pin which normally held in place the larger metal pin which in turn was meant to be connected to the tower lift cylinder of the EWP. According to the defendant this same improvement should have been made to the subject EWP, but wasn't. According to the defendant the conclusion is available that had the improvements been made, the accident would not have happened. 24 In my view this conclusion is not borne out by the evidence. JLG's facsimile adds an important rider in relation to the method incorporated into the EWPs, that is, either the method which employed the grooved pin which held in place the larger metal pin, or the nut and bolt assemblage which replaced the grooved pin. The issue instead is one of proper inspection and maintenance. In this regard the rider states:

"Either method is fine providing regular inspections are carried out as per the guidelines in the operations and safety manual for this model." 25 The defendant also relies on the statement of Mr Acton in his report that because the defendant kept some inspection and maintenance records, including computer records, in relation to the EWP, it has demonstrated a sevice history of compliance. 26 It is not said how this impacts on JLG's alleged culpability in relation to the offence. In any event, as I earlier remarked, the records do show a history of compliance, but only partly so. Of greater significance to the present proceedings is the evidence that no major inspection was undertaken by the defendant. As Mr Leavy emphasised in his report, the EWPs have a design life of 10 years. It is virtually impossible to determine the extent of the design life of EWPs in the absence of detailed records, and hence the stringent procedures and importance attributed to the need for the machines to undergo a major inspection after 10 years, under the Standard. 27 The defendant also relied on the observation by Mr Acton in his report that the "failure related pin" (which I take to be the small grooved pin which was intended to hold the larger metal pin which dislodged at the time of the accident) was not indicated on any JLG preparation and inspection programme. The significance of this according to the defendant is that JLG's manual did not draw attention to the presence of the failure related pin in the tower lift cylinder assemblage; and, the pin was defective.

28 It is difficult to see how these matters advance the defendant's contention in relation to the alleged culpability of JLG in the offence. As I have already observed, JLG's facsimile clearly suggests that utilising either the large metal pin and smaller grooved pin assemblage, or the nut and bolt assemblage in the tower lift cylinder, was satisfactory as long as regular inspections were carried out. If the defendant had carried out a 10 year inspection, or a 15 year inspection, then either inspection, if performed correctly, would have involved a "strip down" inspection which would no doubt have revealed the presence of the pins assembled in the tower lift cylinder and, any defects in relation to those items. The fact that JLG's manual did not depict the smaller pin in a diagramme, or otherwise draw attention to it, does not suggest any culpability on the part of JLG in relation to the offence the subject of these proceedings. Nor does the evidence support an inference that the smaller pin was inherently defective. Rather, as the facsimile suggests, it was adequate if subjected to regular inspections. This was the responsibility of the defendant once ownership passed to it in 1995, and not JLG. The gravamen of the offence to which the defendant has pleaded guilty is the failure to repair and maintain the EWP. The risk to safety arose because of the defendant's failure to undertake a major inspection of the EWP. Had such an inspection been undertaken by the defendant it is unlikely, based on the evidence tendered during these proceedings, (in particular Mr Leavy's report), that the risk to safety would have arisen.

29 A similar approach was taken by Boland J in Inspector Maurice Vierow v Linddales Pty Ltd [2007] NSWIRComm 255. In that judgment the defendant operated as a labour hire company and contracted with Barclay Mowlem Construction Limited to provide labour to operate plant at a construction site. One of the defendant's employees received serious injuries at the site while operating a Manitou mobile crane. The defendant was charged under s 8(1) of the Act for failing to ensure that the Manitou mobile crane was safe. On sentence the defendant contended that a relevant consideration was the degree of culpability as between it and Barclay Mowlem. In dealing with the issue his Honour expressed the following reservations:

[35] One has to be careful about assessing arguments relating to relative culpability. The assessment of penalties for breaches of the Occupational Health and Safety Act is not concerned with apportionment as between two employer tortfeasors, which was an issue before the Court of Appeal in TNT v Christie. Rather, it involves an assessment of the objective and subjective factors relevant to the particular offence and based on that assessment using the instinctive synthesis approach to sentencing, prescribing a penalty at an appropriate point on the scale between zero and the maximum provided by the legislation, in the context of an absolute liability offence.

[36] On the evidence in these proceedings it is apparent that Barclay Mowlem's conduct had the effect of placing Mr James at risk, that is the risk of injury from the crane toppling over. However, the question is whether I should regard the defendant's criminality as somehow reduced (and therefore attracting a lesser penalty) because of Barclay Mowlem's conduct.

[37] There may be circumstances where the action of another party unquestionably mitigates the seriousness of a defendant's failure to ensure safety. Take this example: assume the defendant had specifically required Barclay Mowlem, as it subsequently did, to regularly have a qualified person check the plant to be used by the defendant's employees and to certify it was safe and met legal requirements, and Barclay Mowlem had failed to carry out that obligation. It would have been eminently arguable that because of Barclay Mowlem's conduct in failing to meet the defendant's specific safety instruction, the objective seriousness of the offence was significantly less that it otherwise would have been.

[38] However, what must be borne steadily in mind in the circumstances of this case is that Mr James was an employee of the defendant whose non-delegable duty to its employee was to ensure his safety. The fact is that the risk was most unlikely to have eventuated in the first place if the defendant had taken the steps that it did to protect its employees following the incident. For example, it was contended that Barclay Mowlem supplied the deficient plant thereby contributing to the risk. But it was always open, indeed incumbent upon the defendant, before Mr James used the crane, for it to inspect the crane to ensure the Manitou did not present a risk. Had this been done, and a proper risk assessment carried out, it is most unlikely the risk would have arisen. 30 The question of the relative culpability of the defendant in the present proceedings and JLG warrants a similar approach. JLG's conduct, for example, in failing to replace the large metal pin and small grooved pin mechanism with a nut and bold assemblage; and, in failing to draw attention to the grooved pin in the manual, does not impact on the defendant's criminality in relation to the offence, the gravamen of which is the failure to repair and maintain the EWP. After purchasing the machine from JLG in 1995 this was the defendant's responsibility and not the responsibility of JLG. By the time of the accident of 6 October 2004 the EWP was overdue for a major inspection. If such an inspection had been undertaken within the required time it no doubt, in my view, would have revealed any fault or defect in relation to the pins which was capable of rectification. 31 In determining penalty against the defendant I have taken into account the objective seriousness of the offence, the personal factors described where, and the absence of prior convictions. The objective and subjective factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A. Orders

32 In Matter No. IRC 3003 of 2006, the Court makes the following orders:

(1) The defendant Carrst Pty Limited (formerly known as Carrington Steel Pty Ltd) is convicted of the offence.

(2) The defendant is fined $90,000 with a moiety to the prosecutor.

(3) The defendant is to pay the costs of the prosecutor as agreed or as assessed.

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