Inspector Orr v Perilya Broken Hill Limited

District Court of NSW|2018-04-13|Before: Mr J

Solicitors: Norton Rose Fulbright instructed by the Prosecutor; Colin Biggers and Paisley instructed by the Defendant File Number(s): 2014/176345

Judgment

On 28 February 2018, I found the defendant, Perilya Broken Hill Limited (PBHL), guilty of a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (WHS Act).
The matter now falls for sentence. The maximum penalty for the offence is $1,500,000.
The facts on which the sentence is to be based are set out in large measure in the reasons I published on 28 February 2018. I take them into account though I shall not be referring to them specifically except to the extent I find it necessary to do so in explaining these reasons.
I have been provided with an affidavit of Paul Marinko of 9 April 2018.

Objective seriousness

I start my analysis with a consideration of the objective seriousness of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.
These matters have all been dealt with in my reasons of 28 February 2018. I need make only brief comment here.
There was a foreseeable risk. Not only was the risk foreseeable, it was foreseen by PBHL. This is evident from [105] and [204] of my earlier reasons. What PBHL foresaw was that workers could get in the bucket of the loader to undertake the task. If that was not foreseen, it was clearly foreseeable. PBHL knew and accordingly foresaw that posed a risk of death or serious injury.
In addition to the matters specified in [105] and [204] of my earlier reasons, the prosecutor also relies on other evidence going to foreseeability, especially the evidence of Mr Cockbain at Exhibit PX 1, Vol 9, Tab 248 and Vol 10 at Tabs 251 to 256. In view of my findings, there is no need to embark on a consideration of that evidence.
There were available measures to address the risk such that the risk would have been eliminated or, at least, substantially minimised.
At this point, I would note that there were two matters of considerable significance in the finding of guilt. One was the risk assessment both as to its process and in the document produced, the JSA. The other concerned the condition of the PPE and the inspection system in relation to that.
The principal measure available to PBHL was a proper risk assessment process leading to a proper JSA. The JSA in this case was deficient both in the process that brought it into being and in the document itself. Many reasons for this are set out in my earlier judgment, especially at [149] to [152], [411] to [454] and [465]. In particular:

the JSA was not conducted in a team setting comprising all persons who were to perform the task;
the JSA was not done on the job site;
there was no risk management discussion with Mr Rowbotham or Mr Olds and limited discussion with Mr Pollard, despite PBHL's personnel undertaking numerous discussions and inspections of the site. Messrs Rowbotham and Olds were effectively ignored;
the step-by-step detail of the work process as put forward by PBHL at the hearing was not a process that was covered in full before the task was undertaken and, apart from the JSA itself, was not covered in any documented form;
the JSA itself did not cover the detailed step-by-step process PBHL postulated at the hearing. It covered four steps only, being:
- clear the area to work in;
- place the loader in position;
- connect the weights to the bottom of the flask;
- lower the bucket so the flask takes the weight;
the JSA, limited as it was to those four steps, missed practically all of the 13 steps set out at [436] of my earlier reasons, all being steps PBHL says it had planned. Nor was the item in [440] of my earlier reasons included in the JSA;
the JSA did not identify the risk of falling from height. It could and should have done so with a control measure that all work was to be done from the level or the platform above;
the deficiencies in the JSA are compounded by the failure of PBHL's personnel to pass on to Mr Pollard and Mr Rowbotham what they had been told by the chief planner, Mr Dally and that was that he did not want the workers working from the bucket;
the supervisor, Mr Ridley, did not ensure compliance with the requirements for a JSA;
Mr Ridley accepted as a satisfactory JSA a document that, on its face, was plainly deficient and deficient in many significant ways;
Mr Ridley accepted the JSA as a satisfactory document in circumstances where he knew Mr Rowbotham was to be party to it and knew he had no input into it or any involvement in the process of it;
Mr Ridley armed with Mr Pollard with a plainly deficient document and told him to commence the work;
Mr Ridley himself was not part of the meeting of 5 June 2012 that discussed the job.

There were also other measures available to PBHL to address the risk thereby eliminating or minimising it. These are covered in my earlier reasons and I simply note them in short form as: • the provision of appropriate fall arrest equipment; the implementation of a proper system of inspection of fall arrest equipment; the implementation of a documented policy banning the use of loader buckets as work platforms; the giving of an instruction to Mr Pollard and Mr Olds not to use the loader bucket as a work platform; the provision of information and training to prevent the use of a loader bucket and a work platform and to prevent the practice of reeving; the provision of refresher training in relation to PPE; the provision of adequate supervision directed to the use of correct PPE and PPE without defects and proper external inspection of PPE; assessment and approval of a proper method of doing the work; the provision of supervision when work commenced.
The breach in relation to the PPE is of a sufficiently high level of seriousness to warrant specific comment. It is covered in my earlier reasons at [307] to [338], [375] to [392] and [467] to [476]. Significant points include:

Mr Pollard's harness was one of the worst the expert, Mr Bacon, had seen;
PBHL had external examiners from time to time attend and examine PPE. There was no system for ensuring that all PPE was examined. A simple count of the number of items examined by the outside contractors would have revealed that on all occasions, some only of the PPE was being examined;
the result of the previous point is that in the case of Mr Pollard and Mr Rowbotham, their PPE had not been examined for a long time or at all;
PBHL did nothing about that system until after the incident;
another result of this system was that on an examination by an outside contractor of PBHL's PPE after the incident, about 60 harnesses and lanyards were failed. Apart from defective condition, some were out of date by five years.

The defendant submitted there are matters lessening the objective seriousness of the offence. They are: 1. there was in place at the time an unwritten policy prohibiting the use of the bucket of a loader as a work platform; 2. the workers were aware of this policy and of the possible consequences for breach; 3. the likelihood of the workers getting into the bucket was slight; 4. Mr Pollard was chosen for the job because of his experience, expertise and attitude to safety; 5. the job was done on a winder maintenance day chosen amongst other reasons because everything would be shut down; 6. there were a number of checks and balances in PBHL's system intended to deal with unsafe situations or a change in circumstances. They included in this situation the right and duty of the workers to stop work and amend the JSA when they realised they were about to use the bucket of the loader. There was also the prohibition of working in the shaft without a shaft inspection having been done. Another was the 3TC process.
The first five points have some merit in ameliorating the objective seriousness of the offence. The sixth has little, if any, merit. The 3TC process was a flawed process for reasons explained in my earlier reasons at [455] to [464]. The right and duty to change the JSA in circumstances where the supervisor signed off on it and did not tell the workers not to get in the bucket as Mr Dalley expected him to can hardly operate in PBHL's favour. The same may be said of the prohibition against working in the shaft without an inspection. Further, with the focus on a very specific job which Mr Ridley told Mr Pollard to start in his absence it can hardly be expected that the workers would be contemplating matters like shaft inspection.
I accept the thrust of PBHL's submission that this was not a case of PBHL having no safety system in place. It did. So far as the JSA process was concerned it had a thorough system in place. It did not follow it. Its attempt to produce an appropriate JSA document was, at best, formal. It consisted simply of Mr Ridley telling Mr Pollard to prepare one and obviously in circumstances where it was not then possible to comply with its own system. That became obvious when Mr Ridley saw and signed off on the document.
I accept also PBHL's submission that this was not a case where PBHL paid no attention to safety considerations in carrying out the task. It did. As I indicated in my earlier reasons the many inspections of the worksite were not simply to see if the job could be done. They were also to see if it could be done safely.
In the running of the case, the way in which the job could have been done safely was spelt out in some detail. The problem is that was only partially explained to Mr Pollard. It was not explained to Mr Rowbotham at all and it was not documented at all. The JSA document could not be described as documenting that process.
All these matters lead me to the view that this matter is in the mid-range of objective seriousness.

Aggravating factors

I take into account the injuries to Mr Pollard as an aggravating factor - s21A(2)(g) Crimes (Sentencing Procedure) Act.
At this point I turn to the victim impact statement. In addition to the amputation of his right leg at the hip, Mr Pollard specified other injuries being liver lacerations, spinal fractures in three places, seven broken ribs in multiple places and multiple lacerations involving the right ear, back of the head, left leg, right eyebrow and left elbow. He sets out the physical and emotional effects upon him and the manner in which the injury has impacted on his day‑to‑day life, he being a person who, before the incident, had many activities.
PBHL has four prior convictions. I do not propose to delve into the detail of those cases. It is sufficient to note they were all for breaches of s 8(1) of the Occupational Health and Safety Act, the precursor to s 19(1) of the Work Health and Safety Act. Two of them involved fatality.
They were all in respect of incidents that occurred before PBHL undertook a safety drive, which I shall come to. I think this offence therefore should not be characterised as a manifestation of continuing disobedience of the law as stated in Veen No 2 at [477-8]. It is relevant however to specific deterrence which I shall come to.

Deterrence

I take into account general deterrence. It is a significant factor where safety obligations are involved - Bulga Underground Operations Pty. Ltd v Nash [2016] NSWCCA 37, [180] - [181]. This must be especially so in the mining industry which involves considerable risk with potentially fatal or catastrophic consequences. Compliance with safety obligation must be a paramount consideration for employers and others under safety obligations. Those who do not comply must be aware that there are consequences.
I take into account specific deterrence also. Matters indicating the need to take it into account are:

PBHL continues to operate in the mining industry which is an industry with high risk of injury. It currently employs 434 people. In addition, in the 12 months to 28 February 2018, it engaged 192 full time contractors. It expects to employ another 89 by year's end;
the four prior convictions. They must be relevant in determining that specific deterrence should be taken into account;
PBHL's attitude that its risk assessment process and the resultant JSA were satisfactory;
PBHL's attitude that the entirety of the blame for the incident lay with the operators undertaking the work.

These are all matters that show up the need for specific deterrence to be taken into account. It is important however that no one of these items be doubled-up in any way in taking them into account.

Mitigating factors

The affidavit of Mr Marinko offers little by way of mitigating factors. What follows is taken in large measure from his affidavit.
Before 2008, PBHL's injury rate was about three times the NSW industry average. PBHL went about attending to that. It did so and reduced its injury rate from 95.6 injuries per one million man hours worked to 13.3. This was then about half the NSW industry average. The mine moved from being one of the worst performing mines in NSW to one of the best in three years. That is a matter to be taken into account.
From 2008 to 2012, PBHL undertook active and proactive safety procedures. I do not dwell on them. They are set out at [15] to [32] of the affidavit. Whilst it is commendable that PBHL undertook these measures, it was, nevertheless, under a health and safety duty and expected to undertake significant safety measures. Nevertheless, the measures undertaken may properly be taken into account.
The evidence does not address the failure of the system in this case. PBHL had a system and processes for JSAs. The evidence does not address why the system was not followed. It also had a system for external examination of PPE. The evidence does not explain if PBHL was aware that not all PPE was being examined and, if not, why not. Likewise, the evidence does not explain other breaches found. The absence of this evidence is not to be seen as an aggravating factor, but it does mean that there is no explanation that can operate in mitigation.
Mr Marinko's affidavit sets out financial assistance provided to Mr Pollard. The amount is not specified, but it would not be insubstantial. PBHL has also provided other support in the form of assistance in a number of ways from Mr Purcell, PBHL's health and injury management coordinator, and also in assisting Mr Pollard's return to work. He has been placed in a few different positions until one suitable to him was found.
PBHL makes contributions in cash and kind in a significant way to various community charities and facilities.
Mr Marinko asserts that PBHL has co-operated with the Department in its investigation into the incident. No detail is provided. Nothing has been suggested by way of co-operation other than compliance with legal obligation, such as for example answering s 155 Notices. To the extent that that is co-operation, it is so insignificant I do not take it into account.
PBHL has taken remedial action since the incident. It now teaches and instructs, in a formal way, that using the bucket of a loader is forbidden. Its system for external inspection of PPE has been changed. There is no need to detail it. It is sufficient to note that outside specialists now inspect all PPE every three months and there are systems associated with that including a system of colour tagging that ensures all PPE is inspected and is within the currency of its inspection period at the time of use.
No material has been put into evidence to warrant any relief under s 6 of the Fines Act 1996.

The penalty

The case calls for a significant penalty and I think the appropriate fine is $500,000.

Result and Order

PBHL is convicted.
PBHL is fined the sum of $500,000. One half of the fine is to be paid to the prosecutor in accordance with s122 of the Fines Act.

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. Decision last updated: 24 May 2018

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