Inspector Patton v Shoalhaven City Council

Construction Safety Act 1912 Construction Safety Regulations 1950 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health & Safety Act 2000 Occupational Health & Safety Regulation 2001

Capral Aluminium Pty Limited v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Fisher v Samaras (1996) 82 IR 384 Haynes v CI & D Manufacturing Pty Ltd (No 2), Callaghan v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 456 Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Markarian v R (2005) 215 ALR 213 Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Tyler v Sydney Electricity (1993) 47 IR 1 U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21

PROSECUTOR Ms P McDonald of counsel Solicitor: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES:

DEFENDANT Mr J Phillips SC Solicitor: Ms C Holt Sparke Helmore

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

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000

Introduction 1 Shoalhaven City Council, the defendant, has pleaded guilty to a charge brought by John Patton, an Inspector of the WorkCover Authority of New South Wales, under s 8(1) of the Occupational Health & Safety Act 2000 ("the Act"). 2 The defendant is a statutory corporation, having its registered office at the City Administration Centre, Bridge Road, Nowra, in the State of New South Wales. In its role as an employer, it has a division called "the Asset Construction and Maintenance Division" ("ACM Division") which manages the construction work for the defendant. 3 At approximately 1.25 pm on 18 July 2003, two employees of the defendant, Mr Wayne Burke and Mr Craig Maloney were working in an excavation that was approximately six metres wide, 14 metres long and between 1.8 and 2.1 metres deep when between a half to two tonnes of dirt dislodged from the eastern side of the excavation, pushing Mr Burke over to the western side of the excavation and into Mr Maloney. Neither employee suffered any injuries. 4 In an amended application for order, it was alleged that the defendant: DID FAIL, contrary to Section 8(1) of the 2000 Act to ensure the health, safety and welfare at work of all of the employees of the Defendant employer, and in particular, Mr Wayne Burke and Mr Craig Maloney. The particulars of the charge are as follows: 1. The Defendant failed to maintain a system of work that was safe and without risk to health in relation to the project that it was undertaking at the site on the said date in that it failed to ensure that the excavation was benched or battered in order to prevent collapse. Further the Defendant failed to require that the excavator, which was working at the site was kept away from the edge of the excavation so as to ensure that the weight and vibration of the excavator would not of itself contribute to and/or cause the collapse of the wall of the excavation. 2. On 18 July 2003, at the said site, a segment of the eastern wall of the excavation collapsed exposing Messrs Bourke (sic) and Maloney to risk of injury. 5 The defendant entered a plea of guilty in respect of the charge. 6 An agreed statement of facts in the following terms (formal parts omitted) stated: 3 At the time of the subject incident, the Defendant had a division called the "Asset Construction and Maintenance Division" ('ACM Division'). 4 At the time of the subject incident, the construction work for Council was managed from the ACM Division. 5 The ACM Division undertook construction work such as kerb and guttering, road repairs and maintenance, road construction and drainage installation. 6 In or around the first half of 2003, the ACM Division were asked by Council to undertake culvert and drainage maintenance works at Sanctuary Point Road. 7 These works involved drainage pipe excavation and the installation of a large box culvert. The project entailed the removal of twin 900 mm concrete pipes that ran under Sanctuary Point Road ("Site"), placing of twin precast concrete box culverts, backfilling, replacing the bitumen roadway and work on the creek bed downstream from the culvert ("Project"). The Project was allocated to a crew from the ACMD. 8 The Construction Supervisor for the Project was Ross Manns. Mr Manns supervised the crew who would carry out the works. On the day of the incident the crew included:- (a) Wayne Burke - Ganger; (b) Craig Maloney - Labourer. 9 Mr Burke, Mr Maloney and Mr Manns were experienced in drainage pipe excavation and installation and small box culvert installation. 10 In addition to these employees, Council engaged Rod Rumble to operate an excavator to remove the old pipes and Garry Ganderton to operate a backhoe to backfill the roadway once the old pipes were removed and new culverts installed. Council also engaged John Craner, a contractor truck driver. 11 Mr Manns had been employed by Council for almost 17 years prior to the incident and had 30 years experience as a contractor in the construction industry. Mr Burke had 18 years experience in trenching, excavations and pipe laying. 12 Mr Manns reported directly to David Banwell, a construction engineer for Council. 13 At the outset of the project (prior to work commencing), David Banwell provided Ross Manns with a Project Plan. The Project Plan incorporated the actual site plan, risk assessment sheets, hazard prevention forms and induction sheets.

15 July 2003 14 During the morning of 15 July 2003, Mr Rumble was using the excavator to remove the old pipes, excavating to depth and then loading blue metal into the excavation. The excavator was then used to lower the precast concrete bases and box culvert sections into the excavation. In order to do this, the excavator had to travel to the edge of the excavation as outlined in paragraph 32 on a number of occasions. The weight and vibration of the excavator would have contributed to the side of the excavation collapsing in.

16 July 2003 15 On 16 July 2003 Wayne Burke and Craig Maloney were asked by Ross Manns to attend the site to locate in-ground services before any excavation was to commence. Ross Manns did not attend. 16 During their time at the site Mr Burke and Mr Maloney positioned roadwork signs for the project in accordance with their Traffic Control Plan and did a manual probe for services on the Northern side of the road where they were told some services were located.

17 July 2003 17 On the morning of Thursday, 17 July 2003 Mr Burke conducted a site induction for employees and two (2) contractors who would be performing work at the Site. Mr Ganderton was not inducted to the site. 18 Each of the employees and two (2) contractors who attended the induction signed a register in the Project Plan to confirm their attendance.

18 July 2003 19 During the morning of 18 July 2003, the Crew participated in a tool box talk. 20 During this toolbox talk, the Crew discussed the actual Project, personal protective equipment, including the use of hard hats at the Site; the depth of the trench, site safety hazard prevention and general work safety; and escape routes, should they be necessary. 21 The day before the incident, Ross Manns, Rodney Rumble, David Banwell, Wayne Burke and Craig Maloney spoke about the depth of the excavation in regards to its benching. At this time, no concerns were raised by any crew member over the safety of the excavation. 22 In addition to the tool box talk, a risk assessment was undertaken by Mr Wayne Burke and Craig Maloney in which they listed certain hazards and appropriate control mechanisms for each hazard. This list was documented in the Project Plan. The risk of part of the excavation becoming dislodged was not identified in the hazard checklist completed by Mr Burke and Mr Maloney. 23 However, at some time prior to the incident, Mr Bourke (sic) and Mr Rumble alleged that they raised their concern of the depth of the excavation being greater than one point five (1.5) metres and that the sides should be benched. Ross Manns says that he did not deem it necessary to bench the sides of the excavation because the sides were six (6) metres apart. 24 Prior to commencing work, Mr Manns passed on a copy of the site plans, risk assessment sheets, safety checklist sheets and the induction sheets to Wayne Burke. 25 After the tool box meeting, the Crew commenced removing the pipes that were in the ground and installing sections of the box culvert. 26 At the time the crew commenced work on 18 July 2003, part of the excavation was approximately six (6) metres wide and fourteen (14) metres long and between one point eight (1.8) and two point one (2.1) metres deep. The depth of the trench varied in places due to the alignment of the road. 27 On the morning of 18 July 2003 there was water in the bottom of the excavation. Mr Craig Maloney was instructed to leave the Site to collect a pump to pump out the water from the excavation. Upon returning to the Site the water was pumped out and work commenced. The water was caused by rain that fell overnight (as opposed to the excavation being water-charged ground).

The Incident 28 Mr Rumble was using the excavator to remove old pipes, excavating to depth and loading blue metal into the excavation. 29 At approximately 1.00 pm the backhoe arrived on site and backfilling of the roadway commenced that had box culvert sections installed. 30 At approximately 1.25 pm the work had progressed to half way through the roadway. 31 At this time, Mr Manns, Mr Maloney and Mr Burke were working in the excavated area. Mr Rumble alleges that the excavator was in a stationary position approximately 3.5 metres away from the side of the excavation. Mr Maloney alleges that just before the collapse the excavator had been close to the side of the excavation (approximately 1.2 - 2 metres from the edge of the excavation) and tracked away. 32 Mr Maloney was crouched down in the excavation using a large screed to spread the blue metal at the base of the excavation in preparation for the box culverts. 33 Mr Burke and Mr Manns were assisting Mr Maloney and were working with shovels. Mr Maloney was towards the western side of the excavation. Mr Burke was on the eastern side of the excavation. Mr Manns was also on the western side of the excavation. 34 During this period Mr Windell, Leading Hand Plant Operator alleges that about one and a half to two (2) tonnes of dirt dislodged from the eastern side of the excavation into the trench pushing Mr Burke over to the western side of the excavation into Craig Maloney. Mr Rumble alleges that approximately a half to three quarters of a tonne of dirt dislodged from the eastern side of the excavation. Mr Burke was closest to the dislodgement. 35 Mr Burke, Mr Maloney and Mr Windell (Leading Hand Plant Operator) have alleged that the ground layers below the road surface and compacted road base was loose material, primarily loose sandy/clay material. However, Mr Manns alleges that the material was dry and compact. 36 Following the dislodgement, Mr Burke exited the excavation and immediately took some photographs and returned to the excavation once the excavator had removed the dirt. Mr Manns and Mr Maloney remained in the excavation. Work continued on the southern end of the excavation until all work ceased. 37 Prior to the accident the Council did have an OHS&R management system in place for construction work. The OHS&R system included an OHS Manual which contained a Trench Work procedure. It stated any trench over 1.5 metres in depth and over 2.4 metres in length was to have approved shoring or benching or battering. The OHS&R management system only referred to trenches to be benched or battered, not general excavations. 38 Prior to the accident, there was no safe work method statement prepared by Shoalhaven City Council. 39 After the accident, the Defendant put an action plan in place to improve the system of work on all sites. The action plan comprised points which included: (i) Amending the Project Plan documentation to further assist in identifying help identify and recording all hazards associated with excavations as shown in the new excavation code of practice. (ii) Preparing a generic risk assessment for excavations based upon the excavation code of practice. (iii) Advising the committee of safety review, the need to review and promote across council the need to bench, shore or batter any excavation greater than 1.5 metres. (iv) Adopting no machinery or heavy weights to be located in the zone of influence as per the draft code for excavations. (v) Adopting the term excavation rather than trenching work, and that will be reflected in the OHS & R Manual. (vi) For staff to be aware that the size of the pipes on the plan in the internal size that the water flows through, that the cut and fill will be greater to provide the depth to install. (vii) That the description of the plans council prepare for works be changed from "cut & fill" to 'depth to invert'. (viii) That council undertakes a risk assessment discussing pipe installation, identify the increase in depth of excavation that may be required, and in particular, identify where this increase can make the depth greater than 1.5 metres. (ix) Revisiting the guidelines for injury reporting. (x) Included in the existing process is dial before you dig information. Council to reinforce with staff the need for this information to be sought when they check for the potential for other services. (xi) There were identified further meetings between council and Occupational Health & Safety staff and Ross Manns to complete the information on the accident report forms. (xii) Issuing a memo to all staff that were at the incident site, on the outcomes with both Workcover and comment dated 25 July 2003, and 5 August 2003 management review of the incident. (xiii) The Occupational Health and Safety manager to issue a safety alert on the depth of the trench and the distance equipment is allowed at the edge of the trench. 40. The risk assessment for the project did not consider these factors, that is, the excavator working the zone of influence on top of the excavation, the vibration from the excavator, the loose material under the road base and water running through the excavation.

7 In addition, the prosecutor relied upon a Factual Report of Inspector Patton dated 20 October 2003; 20 colour photographs and the WorkCover Code of Practice, Excavation Work 2000. A certificate of prior convictions was also provided to the Court which disclosed one prior conviction in 1997. 8 The defendant tendered a affidavit of Fiona Hackett, OH&S Co-ordinator, of the defendant, who was not required for cross-examination. Attached to Ms Hackett's affidavit were 39 annexures which included the defendant's Concept Plan of the area in which pipes were to be removed and a new box culvert installed; the Project Plan; a Site Induction Plan signed by employees and contractors who were to work on the site; a Hazard Checklist; an Environmental Checklist; a Weekly Program required to be completed by the supervisor of the construction crew; part of the defendant's Occupational, Health, Safety and Rehabilitation ("OHS&R") system which documented a system with respect to "Trench Works"; a Revised Excavation Work Guidelines; a Safety Checklist completed by Mr Burke dated 15 July 2003; the Construction Supervisor, Mr Mann's Training History and courses attended; the defendant's Workplace Inspection Procedure; the full training history of Mr Burke, Mr Maloney and Mr Banwell; an amended Site Risk Assessment Form; the Works and Services Safety Committee Minutes for 15 October 2003 which amended the Trench Work Procedure; the OHS&R Manual; the OH&S Risk Management Procedure; the current OH&S Policy; OH&S Committee Responsibilities and Structure; OH&S Consultation Policy; documented OH&S Strategy; the Workplace Incident Procedure and the On-site Emergency Procedure. 9 Ms Hackett gave evidence of her duties and responsibilities as OH&S co-ordinator and listed numerous OH&S courses that she had attended. She stated that the defendant administers approximately 4,660 square kilometres and is responsible for matters traditionally associated with Local Government, such as parks, gardens, aquatic leisure centres, roads, social services, libraries, together with water, sewerage and drainage functions. 10 The defendant employs approximately 828 full-time employees and over the period of any one year engages hundreds of contractors, and in turn sub-contractors and their employees who are involved in providing an extensive range of services to the defendant. 11 Ms Hackett deposed that the City Services Group is responsible for managing the Council's assets by planning and arranging construction and determining ongoing maintenance. The reporting structure of the City Services Group was set out which showed that the Director of this Group reported to the General Manager of the defendant. 12 Ms Hackett then dealt with the project which is the subject of the prosecution stating that a project plan was developed which included site induction, hazard assessment, cost estimates and weekly program. A traffic management plan also formed part of the Project Plan. 13 Ms Hackett's evidence in respect of site induction was that on 17 and 18 July 2003, Mr Burke, the Ganger, inducted seven employees and contractors who would be working on the Project. This included Mr Manns and Mr Maloney. Each of the employees and contractors who were given a site induction document and signed a register in the project plan. Discussions during the induction included a briefing of the Project, risks and control measures understanding of workers' roles and responsibilities in achieving the aims of the Project and utilising on the Hazard Checklist. 14 The Hazard Checklist in the Project Plan listed a number of hazards that had been incorporated into the plan prior to commencing work. One of the hazards listed was "trench work" and control measures stated in part to "bench trench where required". 15 Ms Hackett's evidence was that she understood that Mr Manns had advised WorkCover that he did not believe that the excavation required benching due to the width of the excavation being approximately six metres and because of the dry compact nature of the soil in the excavation. The Project Plan also contained a further Hazard Checklist which was to be completed by the Ganger on site. The crew that were to undertake the Project, completed a Risk Assessment prior to commencing the Project, filling out a table listing potential hazards and appropriate controls for each hazard. The Checklist was completed by Mr Burke. 16 On 15 April 2003, in response to the Risk Assessment, Mr Banwell requested that a "dial before you dig" call be placed before work started on the Project. This call was made and authority was given to proceed. 17 An Environmental Checklist also formed part of the Project Plan. The Checklist was completed by Mr Manns, the Construction Supervisor, on 17 July 2003. Mr Manns wrote the letter "Y" in the box next to the word "vibration" to indicate that the crew would "ensure compaction and excavation are at safe distances". 18 Inspection and testing documentation and the completion of a weekly program was also incorporated into the Project Plan. The weekly plans gave a running order of the tasks to be undertaken during the week. 19 Ms Hackett's evidence was that at the time of the incident, the defendant had a documented system with respect to "trench works" which formed a part of the Council's OHS&R System. Following the incident, revised "Excavation Work Guidelines" were developed, discussed and implemented. Since the incident, as part of the continual improvement process, the Excavation Work Guidelines have undergone a number of reviews. In Ms Hackett's opinion, the Revised Excavation Work Guidelines would make such an incident, as occurred, less likely because more information is provided; more attention is given to all aspects of risk assessments of the work; reference is made to the Code of Practice and the previous protocol came from a number of different sources. The Revised Excavation Work Guidelines draw all information together in one document. The object of the Excavation Work Guidelines are stated as follows: The objective of these guidelines is to assist employees to properly plan any excavation work, thus ensuring a safe system of work and appropriate control measures are implemented to prevent persons being injured. … 20 Ms Hackett deposed that parts of the Revised Excavation Work Guidelines were drafted by extracting relevant information and diagrams from the WorkCover Code of Practice for excavation and the Occupational Health and Safety Regulation 2001. This includes a segment relating to the "zone of influence", an area around an excavation which the Code of Practice states should be considered before starting excavation work. The zone of influence is described as being "the volume of soil around the excavation affected by any external load." 21 The final page of the Revised Excavation Work Guildelines refers to work performed by excavators. This states: Note: for some site locations it may be appropriate for a backhoe to encroach within the zone of influence and place a front bucket of sand in a trench. … The operation and excavation wall must be constantly monitored by the site supervisor. 22 The Guidelines provide for employees to "continually reassess the conditions of the excavation and bring any changes to the attention of their supervisors". Supervisors responsibilities within the defendant include: "Ensuring employees on the excavation sites are properly inducted onto the site, aware of the hazards, understand the system of work and able to provide input to the operation. Continually reassess the conditions of the excavation and take action as appropriate…" 23 Ms Hackett's evidence was that Mr Burke and Mr Manns acted in accordance with these obligations. Ms Hackett stated that on 15 July 2003 Mr Burke completed a Safety Checklist Form issued by the defendant for temporary sites. This form was checked and noted by Mr Manns on 17 July 2003. The Safety Checklist did not identify any unsafe work practices or issues. On 17 July 2003, a further Safety Checklist was conducted by Mr Manns on the Plan. 24 Ms Hackett's evidence was that the defendant actively encourages toolbox talk meetings as part of its safety management system. A toolbox talk meeting was held at 9.00 am on 18 July 2003, the day that the incident occurred. The talk was attended by Messrs Burke, Manns, Rumble, Maloney, Cramer and Banwell. Ms Hackett stated that she believed the following issues were discussed at the toolbox meeting: site safety; hazard prevention; risk management; scope of project; the excavation task; the role of the excavator operator and escape routes. 25 Ms Hackett then gave evidence regarding the periods that the employees involved in the incident had been employed by the defendant together with the various training courses that they had undertaken, particularly those relating to occupational health and safety. Mr Manns and Mr Burke have both been employed for approximately 20 years by the defendant, Mr Maloney for approximately eight years and Mr Banwell approximately two and a half years. 26 Ms Hackett deposed that immediately after the incident Mr Burke exited the excavation and took some photos of the dislodgement and returned to the excavation once the excavator had removed the dirt. Mr Manns, Mr Maloney and Mr Burke continued work after the dislodgment. Mr Maloney and Mr Burke finished work at their normal finish time of 3.30 pm. However, the Supervisor, Construction Engineer and Contractor continued to work until 5.00 pm to ensure the site was safe for the general public. Mr Burke and Mr Maloney completed an Incident Report Form on 21 July 2003. 27 Investigations into the incident were conducted by the OH&S Officer and the Chairman of the Asset Construction Safety Committee with Ms Hackett assisting in the process. On 21 July 2003, a WorkCover Incident Report Form was completed and forwarded to WorkCover. No improvement notices or directions were issued by WorkCover. Following the incident, the defendant's Site Risk Assessment Form ("SRA") and Trench Work Procedure ("TWP") were reviewed and amended in consultation with the OH&S Committee. 28 Ms Hackett deposed that at the time of the incident the defendant had a documented Occupational Health, Safety and Rehabilitation Manual ("OH&S Manual"). Copies are kept in the Supervisor's office and car and a copy is kept in each crew's work truck. Copies of the Manual had been provided to Mr Manns, Mr Keech, Mr Burke and Mr Banwell. Documentation regarding trench work forms part of the OHS Manual. The OH&S System Procedure which forms part of the Manual was reviewed in April 2005 and comprises 13 elements. These elements include, but are not limited to management responsibility for OH&S; document control; training; OH&S risk management; OH&S audit, inspection and testing. 29 At the time of the incident, the defendant had an OH&S Policy in place. This policy was adopted in 1995 and has been reviewed and amended on five occasions since its inception. It is currently under review. The policy clearly expresses the defendant's commitment to safety in the workplace and states that implementation and management of this system will be carried out in consultation with management, OH&S Committees and relevant employees within the defendant. The OH&S Policy is located on the defendant's OH&S Intranet and distributed to all employees during their induction and OH&S training sessions. The Policy is also located on all notice boards in the defendant's offices and in the OH&S Manual. 30 Ms Hackett's evidence was that OH&S Committees have been formally established by the defendant for the purpose of dealing with matters related to workplace health and safety. An OH&S Safety Committee was established for asset construction and management amongst other areas to assist in the consultation process between the OH&S Committees. It implemented an OH&S Consultation Policy in August 2002. 31 Ms Hackett deposed that since 1995 the defendant has had a documented OH&S strategy. The purpose of the strategy is to provide the mechanisms and processes for the efficient and effective implementation of the defendant's policies dealing with OH&S. Each month, the Group Directors receive an OH&S Status Report which outlines any incidents, current safety commitments and the status of major OH&S projects. The report also gives an update of Lost Time Injuries for the defendant's employees for the current and previous months. The defendant's Lost Time Injuries was reduced by 16% in 2004/2005. 32 The defendant is currently seeking to expand its OH&S resources and is in the process of recruiting a dedicated OH&S officer. The defendant has received a range of awards in respect of a number of its systems. 33 As a self insurer the defendant participates in WorkCover's "Self Insurer OHS&R Audits". This involves an auditor from WorkCover auditing various parts of the defendant at various times of the year. The defendant uses this audit process to identify any areas that require improvement and to prepare an action plan with timeframes and to nominate managers responsible for ensuring improvements are implemented. 34 In addition to the external audit by WorkCover, the defendant has its own internal auditing system. The defendant also has a comprehensive documented workplace incident procedure which has been in place since 1996. The procedure set out in this document was followed in respect of the incident. 35 Ms Hackett deposed that at all times, the defendant and its representatives had co-operated with WorkCover and that the defendant deeply regrets that the incident occurred and the breach of the Act. Her evidence was that the defendant strives to ensure an accident free workplace and is committed to the process of continual improvement. Submissions of the Parties 36 Counsel for the prosecutor, Ms P E McDonald, submitted that the principles of sentencing adopted by the Court for offences under the Act involve a consideration of both objective and subjective factors relevant to the offence and the offender. Counsel referred to Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 and emphasised that the two primary factors in the assessment a penalty are: (i) the nature and quality of the offence, that is, the objective seriousness of the offence charged; and (ii) subjective factors. 37 It was submitted that subjective factors are subsidiary to the objective factors and should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 475. 38 Counsel observed that the risk to health and safety of employees of the defendant, was the risk of the excavation collapsing when employees were working in the excavation. This risk, it was submitted, was reasonably foreseeable and had been foreseen by the defendant, as demonstrated by its Project Plan. 39 Counsel submitted that the gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of penalty. Nevertheless, the occurrence of death, or serious injury, manifests a degree of seriousness of the relevant detriment to safety: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 204. Counsel submitted that there was the potential for serious injuries to occur from the collapse of excavations. 40 In this regard, however, it was conceded that the aggravating factors to be taken in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("the CSP Act") were not available. 41 Counsel submitted that the seriousness of the offence is demonstrated by the simple and straightforward steps the defendant would have been able to implement to meet its obligations under the Act. A number of simple remedial steps were available to the defendant and introduced after the incident. 42 Counsel submitted that in accordance with s 21A(2)(d) of the CSP Act, the defendant's prior conviction could be taken into account in determining the appropriate sentence for the offence. 43 Counsel submitted that both general and specific deterrence should be given weight in a sentencing process. 44 Ms McDonald acknowledged that the defendant had entered a formal plea of guilty to the amended charge at the earliest opportunity and also had co-operated with WorkCover. 45 The prosecutor sought costs and a moiety of the fine. 46 Mr J Phillips SC, who appeared for the defendant, provided the Court with a written outline of submissions. Senior counsel's submissions can be conveniently summarised as follows: (i) in assessing penalty, the objective features of the case are of primary significance in sentencing: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 475; (ii) the gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Limited, (unreported, Fisher CJ, CT 90/1214, 30 June 1992) at 9. (iii) the task of a court is to assess the relevant seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 20. (iv) in respect of general deterrence, it was submitted it was relevant where the offence in question is prevalent in society and represents a serious threat to the community. Counsel also referred to the principles set out in Capral Aluminium Pty Limited v WorkCover Authority (NSW) (2000) 49 NSWLR 610 at 643 and at 644 in respect of general and specific deterrence. (v) mitigating factors and any other objective or subjective factor that affects the relevant seriousness of the offence are to be taken into account in sentencing. A reference was made to various authorities in this regard including Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143; Veen v R (No 2) (1988) 164 CLR 465; Markarian v R (2005) 215 ALR 213 and Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266. 47 Counsel submitted that there are no aggravating factors in relation to the defendant as might increase the offence (s 21A(1)(a) of the CSP Act) but there are many mitigating factors which are available to reduce a penalty which would otherwise apply. 48 Counsel referred to Haynes v CI & D Manufacturing Pty Ltd (No 2); Callaghan v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 at 456 - 457, a decision of the Full Bench of the then New South Wales Industrial Court, submitting that when one considers the operations of the defendant from 1948 when it was formed, and the number of industrial transactions that would have taken place, its record is excellent, save for one instance before the Chief Industrial Magistrate when it was fined $2,000 in 1997. 49 Counsel further submitted that upon a proper analysis, this was not a serious accident. The workers were engaged in a very wide excavation, some six metres in width. That fact itself reduced the likelihood that collapse could cause any serious injury. Such a wide excavation provided ample opportunity for any workers to retreat if a wall slipped. This had to be contrasted to a narrow trench where there is less opportunity for the workers to remove themselves quickly from the risk of injury. 50 The work was being conducted by an experienced crew. Mr Phillips placed reliance upon the affidavit of Ms Hackett and the extensive occupational work and safety systems and procedures, as documented by the extensive attachments to her affidavit. Consideration 51 The sentencing principles to be applied in matters such as this were recently restated by the Full Bench in U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266, where the Full Bench stated at [11]: The sentencing principles to be applied in the assessment of appropriate penalties under the Act have been considered on many occasions by this Court, including Full Bench level, and are well known. We refer by way of example to Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474-475 and Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (1999) 91 IR 66 at 77. The starting point is the objective seriousness of the offence and the need to accommodate both general and specific deterrence. The maximum penalty that may be imposed is to be reserved for the most serious offence, that is, the worst possible case. Only after an appropriate penalty has then been formulated are subjective matters to be taken into account, which include factors such as cooperation with the investigation and inquiries of the WorkCover Authority, expressions of remorse and contrition, steps taken to remedy the matters giving rise to the breach and the general approach to occupational health and safety matters and attention to safe working practices by a defendant. This list is not intended to be exhaustive but is indicative of the matters which should be taken into account. Furthermore, a defendant will be entitled to a discount of up to 25 per cent for entering a plea of guilty at the earliest possible opportunity. These subjective factors are then aggregated so that a discount is applied to the penalty assessed by reference to the objective factors, resulting in the penalty to be properly imposed. 52 In this matter, in my view, the risk to the health and safety of employees was the risk of the excavation collapsing when employees were working in the excavation. The dangers associated with work performed in excavations are obvious. The excavation measured approximately six metres wide; 14 metres long and between 1.8 - 2.1 metres deep. In my view, there was a serious risk brought about by deficient engineering, which resulted in the excavation not being benched. 53 The risk to health and safety was, in my view, reasonably foreseeable and it was foreseen by the defendant but there was a deficiency by the defendant in endeavouring to control this risk. The defendant's system concentrates on trenches and ignores the risk that can arise in respect of excavations, particularly where the excavation is deeper than 1.5 metres and benching is not undertaken. Fortunately, both the employees who were in the excavation at the time of the collapse of the wall were able to evade the consequences and avoid injury. 54 That the defendant foresaw the risk is demonstrated by its Project Plan. As part of the Project Plan developed by the defendant for this project, the Hazard Checklist identified the following hazards: "TRENCH WORK Work generally less than 1.5m (bench trench where required). All holes/trenches protected by safety fence. Hard hats essential…….

VIBRATION Structures well set back. Safe Distance = 1.5 Drum Module weight… Safe Distance = 12m." 55 An additional Hazard Checklist was completed by Mr Burke and Mr Maloney but they did not identify the hazard of the collapse of the excavation. The Environmental Checklist completed at the site by Mr Manns identified vibrations and noted "ensure compaction and excavation are at safe distances." 56 At the time of the incident, the defendant had, as part of its OHS&R system a policy dealing with Trench Work. The document commenced by referring to s 97 of the Construction Safety Act 1912 and the requirements of the Construction Act that any trench over 1.5 metres in depth and over 2.4 metres in length requires - approved shoring, benching or battering. It appears that the reference to the Construction Safety Act should have been a reference to reg 97 of the Construction Safety Regulations 1950. The Construction Safety Act was repealed on 1 September 2001. Excavation work is dealt with in Pt 8.5 of the Occupational Health & Safety Regulation 2001. Clause 3 of this Regulation provides that excavation work includes the excavation or filling trenches, ditches, shafts, wells, tunnels and pier holes. 57 The deficiencies in the defendant's system are demonstrated by the following issues: (i) Mr Burke and Mr Rumble raised their concern at the site prior to the incident that the depth of the excavation was greater than 1.5 metres and that the sides should be benched; (ii) Mr Manns said that he did not deem it necessary to bench the sides of the excavation because the sides were six metres apart; (iii) the section of the OHS&R Manual in respect of trench work was dated 1996 and was not updated to reflect amendments in legislation and regulatory systems; (iv) in particular the defendant's system did not refer to relevant risks that are discussed in the Code of Practice-Excavation Work such as the zone of influence; the requirement for excavations deeper than 1.5 m to be benched or battered; the nature of the soil and the presence of water; (v) there was confusion about the surrounding material. Mr Burke, Mr Maloney and Mr Windell said that the ground layers below the road surface and compacted road base were loose material, primary loose sandy/clay material. In comparison Mr Manns emphasised that his decision was justified on the grounds that the material was dry and compact. 58 The key issues to be considered in matters such as the present were succinctly stated by Hill J in Tyler at 5 when his Honour said: The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability. 59 This principle was recently restated by the Full Bench in Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]: [17] The relevance to the gravity of an offence of injuries suffered as a result of a breach of the Occupational Health and Safety Act and the relevance of potential serious consequences or serious injuries of that breach, are well settled: see, for example, Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) at paras [94] and [95] where it was held: [94] We consider that the limited injuries suffered by Mr Stafford must be seen in the context of that evidence and also in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries suffered, or which may have been suffered, and the gravity of the offence. We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Watson v Southern Asphalters Pty Limited (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 131; WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409; Lawrenson Diecasting Pty Limited at 476; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited at 90 - 91; and Page v Walco Hoist Rentals Pty Limited (No. 2) at 22.

[95] It must however be recognised that the principle does not lead to the proposition which, at least implicitly, was relied upon by the appellant. That is, relatively minor injuries of themselves demonstrate that the offence was not a serious one. We do not consider that is or represents a correct statement of principle or correctly portrays the situation here. We consider the relevant risk was not exemplified by the limited nature of the injuries suffered, and thus those injuries do not give an accurate insight into the seriousness of the breach of the Act. Rather, we consider that the breach of the Act, although limited to the failure to provide adequate protective clothing, was a very serious one indeed. [18] We do not consider that the proper application of the relevant principles requires the sentencing judge to expressly specify the type of injury that could have been suffered as a result of the particular breach of the legislation, although it is appropriate in most cases for there to be an indication of the kind of consequence that could have resulted from the breach. The second ground of appeal should therefore be rejected. 60 The risks to safety are obvious and foreseeable in circumstances where employees are working in an excavation and an excavator is required to move to the edge of the excavation. Mr Maloney alleged that just before the collapse the excavator had been close to the side of the excavation approximately 1.2 - 2 metres from the edge of the excavation. Mr Rumble alleged that the excavator was in a stationery position approximately three metres away from the side of the excavation at the time of the incident. 61 Mr Phillips submitted that the work, the subject of the prosecution, was being conducted by an experienced crew of workers. Prior to the work being performed, a plan was developed for it to take place. The original Plan showed that the depth of the excavation was meant to be less than 1.5 metres. The Plan incorporated, amongst other things, a hazard assessment. A site induction occurred for the seven employees and contractors who were to be working on the job. A Hazard Checklist was found in the Plan which included trench work and the need to bench the trench where required. It was believed that the excavation did not require benching due to the width of the excavation being approximately six metres and the dry compact nature of the soil in the excavation. A risk assessment was undertaken by the crew prior the Project commencing. 62 At the time of the incident, the defendant had a documented system with respect to trench works which formed part of the defendant's OHS&R System. In the excavation where the incident occurred, experienced employees were supervising and continually assessing the site. The Safety Checklist had been issued on the day before the incident and a tool box meeting had taken place on the date of the incident prior to it occurring. Hazard prevention and risk management were discussed at the tool box meeting, together with the excavation task, the role of the excavator operator and escape routes. 63 The topic of benching the excavation had been discussed and it was decided by those present not to bench the excavation as it was believed the banked material around the excavation was dry, compact and solid and that the excavation was over six metres wide. The crew performing the excavation work had received extensive training. 64 Despite the carefully argued submissions of the defendant that the nature and quality of the offence is to be considered, in all the circumstances, as not a serious accident, this is not the point. It is the gravity of the risk that must be seen in its proper context. The fact that there were no injuries does not mean the offence was not a serious one. 65 In assessing penalty, it is necessary that the Court have regard to the need for general and specific deterrence: Capral at [74] - [80]. 66 General deterrence must be taken into account because, as identified by Hungerford J in Fisher v Samaras (1996) 82 IR 384 at 388, the offence is against a statute of public interest and public concern and it is important to compel attention to occupational health and safety issues. 67 The Full Bench recently referred to the principles relating to general deterrence in WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 at [80]: [80] Firstly, the Chief Industrial Magistrate underrated the importance of general deterrence in determining the level of penalty. The Court in WorkCover Authority v Schrader held at [69] - [70]:

"The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at [72]).

Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]). See also the Full Bench decision in Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd (2002) 121 IR 119.

68 In my view, general deterrence should therefore be a primary consideration in the penalty that is imposed by the Court. 69 In relation to specific deterrence, as the Full Bench observed in Capral at [77], in view of the scope of the obligations on employers under the Act, in most case it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. The Court noted: …This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety. 70 In respect of the question of specific deterrence, the defendant is a large employer, employing approximately 828 full time staff and administering an area of approximately 4,660 sq kms. 71 In this regard, Mr Phillips referred the Court to a decision of the Full Bench of the former Industrial Court in Haynes v CI & D Manufacturing where it was said: We consider that the extent of the operations of defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a copy is involved in the larger number of industrial accidents which occur as a matter of statistical expectation. The safety record of a very large company with some prior convictions may, on analysis, be better than that of a smaller company with fewer such convictions. 72 I propose to take into account the extent of the defendant's operations, the number of people involved in providing its services, the length of time it has been in operation and its record which discloses only one prior conviction under the Act in assessing penalty. 73 I am disposed to the view that the defendant has a fine industrial record for an organisation operating with a large number of employees over a long time. 74 Furthermore, regarding the question of specific deterrence, the defendant has taken steps to avoid a future recurrence of this incident. The defendant promptly conducted an investigation after the accident and came up with Revised Excavation Guidelines. The defendant also reviewed and amended its SRA form and reviewed its trench work procedures. It is also appropriate that I take into account the defendant's strong commitment to occupational health and safety, the introduction of extensive occupational health and safety programs, management plans and training for its employees. I propose to include a small factor for specific deterrence in fixing penalty. 75 Turning to the subjective factors, I take into account the defendant's commitment to occupational health and safety and the steps taken to improve its safety systems following the incident. 76 The defendant further submits in mitigation as to penalty, that it entered an early plea of guilty to this charge. In my view, it is appropriate to apply the judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419. I propose to allow a discount of 25% for the utilitarian value of the early plea. 77 Mr Phillips submitted that the Court should accept that the defendant had pleaded guilty because of their acceptance of a responsibility for occupational health and safety. The defendant's contrition was expressed by Ms Hackett. I take these matters into account. 78 I am obliged to consider any other subjective factors that may mitigate the seriousness of the offences committed by the defendant. Section 21A(3)(a) and s 21A(3)(m) of the CSP Act provide: (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (m) assistance by the offender to law enforcement authorities (as provided by section 23). 79 There was no evidence of any physical injury suffered by the workers who continued with their work after the incident. I also take into account the defendant's co-operation with the WorkCover Authority. 80 In respect of the overall approach that should be taken in relation to sentencing, Mr Phillips referred to the recent decision of the High Court in Markarian v R (2005) 215 ALR 213 which was considered by Boland J in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 where his Honour stated at [40]: The approach I have taken, therefore, is that required by Lawrenson Diecasting. The guideline judgment in R v Thomson continues to be one this Court is required to take into account and it is appropriate that I indicate a discount at least for the utilitarian value of the guilty plea. In the light of Markarian it is necessary that I take into account all relevant considerations in sentencing (which has always been part of the jurisprudence) and "make a value judgment as to what is the appropriate sentence given all the factors of the case" subject to the approach required by Lawrenson Diecasting . Amongst the objective and subjective factors I am required to take into account are those in ss 21A, 22 and 23 of the Crimes (Sentencing Procedure) Act . I do not consider it is any longer appropriate to take the approach of determining an amount of penalty based on the relevant objective considerations and deducting from that amount allowances for the individual subjective factors. 81 I respectfully agree with his Honour and propose to adopt the same approach in determining sentence in this matter. 82 In my view, the offence falls between the low to mid range of objective seriousness. In reaching this finding, I am mindful that the damage or injury does not, of itself, dictate the seriousness of the offence or penalty: Capral at [94] - [95] and Maddaford v CSR at [17]. 83 Taking into account all of the relevant circumstances and noting that the earlier offence results in a maximum penalty of $825,000 in respect of the offence under consideration, I consider an appropriate penalty is $90,000. ORDERS The Court accordingly makes the following orders:

1. The offence is proven and a verdict of guilty is entered.
2. The defendant is convicted of the offence alleged under s 8(1) of the Occupational Health & Safety Act 2000.
3. The defendant is fined an amount of $90,000 with a moiety to the prosecutor.
4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Court's Rules.

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