Inspector Patton v Star Track Express Pty Ltd

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Christensen v Ravey Pty Ltd [2007] NSWIRComm 109 Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 CASES CITED: Inspector Robert Egan v Coles Supermarkets Australia Pty Ltd trading as Coles Supermarkets [2006] NSWIRComm 7 Inspector Woodington v Thiess Services Pty Ltd (No 2) [2004] NSWIRComm 126 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Nelmac Pty Ltd v Franke (Inspector) (2006) 151 IR 63 Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143

PROSECUTOR Mr M Cahill of counsel Solicitor: Ms R Panagoda WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

DEFENDANT Mr H J Dixon SC with Mr T Saunders of counsel Solicitor: Mr P Arthur Allens Arthur Robinson

Prosecution under s 8(2) of the Occupational Health & Safety Act 2000

1 Star Track Express Pty Ltd ("the defendant") is an express freight distribution company. The defendant has 11 depots located in New South Wales and employs approximately 1,375 employees within the State. It also utilises the services of a number of contractors, including Western Freight Management Pty Ltd ("WFM") to transport freight on its behalf and has done so since 1984. 2 Mr Brian Lloyd and Mr David Norman were employed as truck drivers by WFM. At about 7.00 pm on 2 December 2004, as Mr Norman was reversing a semi-trailer towards the loading dock at the defendant's freight distribution depot located at 29-31 Waverley Drive, Unanderra in the State of New South Wales, Mr Lloyd was caught between the rear of the reversing trailer and the dock. As a result of the incident, Mr Lloyd received crush injuries, which subsequently caused his death. 3 The defendant was charged with an offence under s 8(2) of the Occupational Health & Safety Act 2000 ("the Act") which provides: 8 Duties of employers ... (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 4 The offence with which the defendant was charged was that on 2 December 2004, at 29-31 Waverley Drive, Unanderra, the defendant, being an employer, failed to ensure that persons not in its employment and in particular Brian Lloyd, were not exposed to risk to their health or safety arising from the conduct or its undertaking, while they were at its place of work. 5 The particulars of the charge are: 1. Failed to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 2. Failed to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, with respect to the line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 6 The defendant pleaded guilty to the charge. This judgment concerns the penalty to be imposed for the offence. 7 The prosecutor tendered an agreed statement of facts. The statement had annexed to it what is known as the defendant's "Bluecard" Occupational Health and Safety Awareness Procedures for the Transport Industry. Also tendered were 26 colour photographs taken on 2, 8 and 23 December 2004 of the defendant's office, loading dock, garden bed, driveway and a semi-trailer parked in front of the southern loading dock. A factual inspection report by Inspector John Patton dated 3 December 2004 was also tendered together with the defendant's record of prior convictions, which showed no prior convictions. 8 The agreed statement of facts described the incident as follows: 9. At about 7pm on the evening of the subject incident (2 December 2004), Mr Lloyd and Mr Norman were at the premises waiting for the defendant's employees to finish loading the trailers that Mr Lloyd and Norman were scheduled, by the defendant, to haul to other depots. 10. On the evening of 2 December 2004: (a) WFM owned and supplied the prime movers being driven by each of Mr Norman and Mr Lloyd; and (b) the defendant owned and supplied the trailers attached to the prime movers being driven by each of Mr Norman and Mr Lloyd. 11. Just prior to the subject incident, the trailer that struck Mr Lloyd was being loaded by the defendant's employees at the premises. After the defendant's employees finished loading the subject trailer, Mr Norman moved the trailer forward from the loading dock in order to be able to close and seal the doors located at the rear of the trailer. 12. After Mr Norman moved the subject trailer forward, away from the loading dock, Mr Lloyd assisted Mr Norman to close and seal the doors at the rear of the subject trailer in preparation for the departure of the semi-trailer. 13. After Mr Norman and Mr Lloyd had closed and sealed the doors to the trailer, Mr Norman got into the prime mover and completed some paperwork with respect to the load. 14. Due to the configuration of the defendant's depot, in order to exit through the southern gate of the premises, Mr Norman was required to choose whether to: (c) wait until the semi-trailer parked at the adjacent loading dock left the depot; or (d) reverse his semi-trailer back toward the loading dock in order to gain sufficient room to manoeuvre the semi-trailer through the southern gate of the premises. Prior to and at the time of the subject incident, the defendant was aware that such a choice had to be made and that drivers, including Mr Norman, regularly chose to reverse back in order to gain sufficient room to manoeuvre, rather than waiting until the semi-trailer in the northern position moved out of the loading dock. 15. The mirrors fitted to Mr Norman's prime mover did not provide him with any view of the area directly behind the trailer as he reversed; nor were there any other mechanisms, such as reversing mirrors, or a traffic controller, to provide Mr Norman with information about the area located immediately behind the trailer as he reversed the semi-trailer towards the loading dock. 16. As Mr Norman was reversing the semi-trailer towards the loading dock, Mr Lloyd was caught between the rear of the reversing trailer and the dock. It is not known why Mr Lloyd was behind the trailer when Mr Norman reversed the trailer back to the dock given that he and Mr Norman had closed and sealed the doors at the rear of the trailer in preparation for the departure of the trailer. The investigation did not disclose any operational reason for Mr Lloyd to be behind the trailer at the time Mr Norman reversed the trailer back to the dock. 17. As a consequence of being caught between the rear of the trailer and the dock, Mr Lloyd received crush injuries, which subsequently caused his death. 18. At the time of the subject incident, the defendant's employees who had loaded Mr Norman's trailer were loading the adjacent trailer to be driven by Mr Lloyd. None of these employees can recall hearing an audible reverse warning beeper when Mr Norman was reversing his trailer back toward the dock in order to leave through the southern gate of the premises. However, these employees did hear Mr Lloyd call out as he was caught between the rear of the trailer and the dock. 19. When interviewed, Mr Norman stated that he was unaware that Mr Lloyd was behind the trailer as he reversed the trailer towards the dock and that he was unaware that the trailer had struck Mr Lloyd. 20. After Mr Norman had reversed the rear of the semi-trailer toward the dock, Mr Norman drove the semi-trailer forward and commenced to leave the premises by the southern exit. 21. As Mr Norman was moving the semi-trailer forward, Mr Norman heard someone yelling out to him. Mr Norman then stopped the semi-trailer and was told that Mr Lloyd had been caught between the rear of Mr Norman's trailer and the dock. 22. Mr Norman's prime mover (which was owned and supplied by WFM) was fitted with an audible reverse "beeper". Mr Norman has stated that he can not say whether the beeper sounded as he was reversing towards the loading dock on that evening. However, on 7 December 2004 after Mr Norman returned to work following the incident, Mr Norman completed a WFM "repair request" form in relation to the prime mover he was driving on the evening of the incident. On that form Mr Norman wrote that the "rear beeper works sometimes". On receipt of Mr Norman's repair request form, WFM arranged for an auto electrician from S&S Auto Electrical Services Pty Limited to inspect the rear beeper on the prime mover which had been driven by Mr Norman on the evening of the incident. The auto electrician diagnosed a "faulty flasher unit and back alarm" and proceeded to "supply and fit flasher unit and back alarm". After the rear beeper had been replaced, Mr Norman said that it was "ten times louder". 9 The agreed statement of facts then described the defendant's Depot at Unanderra: 23. The defendant leased the premises from the owner, Truebond Investments Pty Ltd, at the time of the incident. 24. The nature of the business conducted by the defendant is express parcel distribution. At the time of the incident the premises were used by the defendant to distribute and collect express freight in the Illawarra area. The defendant employs approximately 1375 persons in New South Wales, and employed approximately 20 persons at the premises at the time of the incident. 25. The premises were operated as a depot by the defendant, or its predecessor Multigroup Distribution Services Pty Ltd trading as Discount Freight then Star Track Express, from 1995 until 17 December 2004, when the depot was relocated to a new purpose-built facility at 4 Industrial Road, Unanderra. The relocation was planned prior to the incident occurring. 26. At the time of the incident, the premises included a building which was used by the defendant as a goods warehouse and distribution centre. The perimeter of the premises had a 1.8 metre high chain wire fence with two chain wire gates in front of the two driveways. The building had 6 loading docks with a large roller door on each dock. The docks were located to the north of the building facing the west. There was an office located in the southern part of the building. 27. There was a concrete loading area to the western side of the building. There were two concrete driveways leading to the concrete loading area, one at the northern end of the premises and the other at the southern end, both coming off Waverley Drive. Inside the boundary fence, on the northern side of the southern driveway there was a concrete kerb around a garden bed. The kerbing was 19.8 metres from the building line. 28. The southern most loading dock was constructed from steel. There was steel checker plate to the top surface and outside vertical face. The top lip of the loading dock protruded out 190 millimetres from the building line and was constructed of 100mm RHS steel. The top level of the loading dock was 1.260 metres high from ground level. The roller door was 4.470 metres wide by 3.750 metres high. The front lip of the loading dock was damaged, approximately 1 metre from the left side. 29. Inspector John Patton, who visited the site on the day of the subject incident, observed a white coloured semi-trailer parked approximately 4.2 metres away from and in front of the second loading dock. The prime mover was a Freightliner (rego XZA 577) and the trailer was a three axle Freighter (rego VT86DH). Painted on the side of the trailer were the words 'Star Track Express'. Painted on the prime mover were the words 'Western Freight Management'. 30. Inspector Patton also observed a white coloured semi-trailer parked on the roadway directly outside the premises, facing in a northerly direction. The prime mover was a Freightliner (rego WZR 076) and the trailer was a three axle Freighter (rego VT10CV, VIN 49762, model No: ST3). Painted on the side of the trailer were the words 'Star Track Express'. Painted on the prime mover were the words 'Western Freight Management'. The prime mover and trailer measured 16.400 metres long. 31. Inspector Patton sat in the driver's seat of the prime mover (rego WZR 076) parked on the roadway. With the doors closed, he looked into the left and right side mirrors. He found the mirrors clean and was able to see unobstructed down both sides of the trailer to the rear of the trailer and beyond. 32. Inspector Patton observed a driver start the engine of the prime mover and then reverse the vehicle. When the prime mover was in reverse gear, there was an audible alarm or beeper. The prime mover and trailer reversed for approximately three metres (10 seconds) with the reversing alarm audible, and then the reversing alarm stopped even though Inspector Patton observed that the semi-trailer was still reversing the truck and trailer. The truck driver stopped the truck, selected a forward gear, and then selected reverse gear again, and the audible alarm did not activate. 10 The safety systems in place at the time of the accident were described in the agreed statement of facts as follows: 33. In accordance with the contractual agreement between the defendant and WFM, WFM employees providing the services on behalf of WFM to the defendant were required to wear Star Track Express uniforms. The defendant's uniforms are, and were at the time of the incident, blue-coloured. 34. The defendant also had in place a policy that required its staff, including employed drivers, to wear high visibility clothing, or vests when on the ground. The defendant also had in place a policy requiring sub-contract drivers, such as Mr Lloyd and Mr Norman, to wear high visibility vests whilst on the ground in the vicinity of trucks and/or in traffic movement areas. 35. Both Mr Norman and Mr Lloyd were wearing Star Track Express uniforms at the time of the subject incident. Neither Mr Norman nor Mr Lloyd were wearing high visibility vests whilst on the ground in the area of the loading docks at the time of the incident. However, prior to the incident Mr Norman: (a) was aware of the defendant's policy regarding the requirement to wear high visibility clothing at the premises; (b) normally wore high visibility clothing at the premises; and (c) had been spoken to by a representative of the defendant about not wearing high visibility clothing at the premises. 36. There were two loading docks at the premises where trailers used for line haul services were loaded and unloaded. The loading docks were located at the southern end of the warehouse building, adjacent to the office area. These are the loading docks that were being used on the evening both prior to and at the time of the subject incident. 37. Prior to the subject incident, each of Mr Lloyd and Mr Norman had reversed the trailer attached to their prime mover into position at the two line haul-loading docks at the premises, so that the trailers could be loaded by the defendant's employees. After being loaded each afternoon, the trailers were transported to the defendant's main distribution facility located at 51 Sargents Road, Minchinbury by WMF employees. Once the trailers were loaded at the premises, the trailers were moved forward from the docks in order for the rear doors to be closed and sealed. The doors were sealed with security tags by the driver of the vehicle after the driver had checked the trailer and the load. 38. This operation occurred daily Monday to Friday. 39. Mr Norman had, as an employee of WFM, been providing line haul services for the defendant for approximately 9 years prior to the incident. During the 9 years or so, he commenced duty at the premises daily and performed 3 return journeys from the premises to the defendant's Minchinbury depot, ceasing duty at the premises after the third return journey. 40. Mr Lloyd had been employed by WFM for about three years prior to the incident. In the 12 to 18 months prior to the incident, Mr Lloyd had driven to, and had his truck loaded at, the premises on a daily basis. 41. Mr Lloyd's daily working routine prior to the incident was to commence duty at WFM's premises in Blacktown, drive a WFM prime mover (without a trailer) to the premises at Unanderra, connect one of the defendant's trailers to the prime mover being driven by Mr Lloyd, wait for the trailer to be loaded at the premises and then drive the prime mover (with trailer attached) to the defendant's depot at Minchinbury, then drive from Minchinbury to Orange and then drive from Orange back home. 42. There were two access/exit gateways at the premises, one at the northern end of the premises and one at the southern end of the premises. If the trailer located at the southern line haul loading dock, where the incident occurred, was loaded first and therefore, ready to leave prior to another trailer being loaded from the next line haul loading dock to the north, then, after the rear doors to the trailer were shut and sealed, the driver had to reverse back onto the loading dock in order to have sufficient turning room to leave the site via the southern gate. This manoeuvre at the southern most loading dock was necessitated by the length of the prime movers and trailers in use and the presence of a garden bed adjacent to the southern exit gate, which combined to preclude a direct exit via the southern gate from the southern loading dock. 43. As a consequence, trailers at this particular loading dock were regularly reversed hard up against the southern loading dock in order to give drivers sufficient room to avoid the garden bed whilst exiting the southern gate. 44. When reversing the semi-trailer used at the time of the incident, the driver had vision along both sides of the trailer via side mirrors, but no vision immediately behind the rear of the trailer. The trailer attached to the prime mover being driven by Mr Norman was an enclosed freight trailer. Also, the loading docks were not fitted with reversing mirrors. 45. The defendant's management was aware of the space restrictions caused by the flower bed located adjacent to the southern exit and the manoeuvres that were necessary at the southern loading dock to enable semi-trailers to exit, around the garden bed, through the southern gate. 46. Mr Norman stated that he believed Mr Lloyd was aware that he was going to reverse the trailer back against the dock after they had closed the doors for the following reasons: (a) Mr Norman had often performed the task (in the presence of Mr Lloyd) when leaving from the same dock, including on the previous afternoon; and (b) Mr Norman said "goodbye" to Mr Lloyd twice after they had closed and sealed the rear doors to the trailer; and (c) immediately after Mr Lloyd and Mr Norman departed at the rear of Mr Norman's trailer, Mr Norman proceeded to walk down the side of his trailer, open the door to the prime mover and get in. 47. All prime movers owned by WMF are manufactured by Freightliner and have audible reversing signals (reversing beepers) fitted including the prime mover, registered number WZR-076, involved in the incident. Trailers are not fitted with reversing beepers or reversing lamps. 48. Advice from the Roads & Traffic Authority (RTA Technical Inquiries) revealed that reversing lamps are not required on trailers in accordance with Australian Design Rules. Advice from RTA Technical Inquiries also revealed that reversing beepers are not required on vehicles, including heavy vehicles, in accordance with Australian Design Rules. 49. WMF had a documented system in place for the reporting of all vehicle defects or repairs required, together with an ongoing vehicle maintenance program. The reversing beepers were required to be checked for operation as part of the vehicle maintenance program. WFM's system required repair requests to be actioned when reported. 50. A Western Freight Management repair request was completed by Mr Norman on 7 December 2004, following the incident, in relation to the reversing beeper on the prime mover involved in the incident. The request indicated that the 'rear beeper works sometimes'. Mr Norman stated that after the incident he listened carefully to the beeper and noticed that it didn't work sometimes. Repairs were carried out on the reversing alarm on 8 December 2004. 51. However, the apparent fault with the reversing beeper was not reported prior to the incident. No record of a fault report or repair request of the reversing beeper prior to the incident has been produced by WFM. 52. The defendant provided some WMF employees who performed work for the defendant with 'Bluecard' training prior to the subject incident. Bluecard training is OHS awareness training for the transport industry. Attached, marked with the letter "A", is a true copy of the presentation used for Bluecard training at the relevant time. 53. Both Mr Norman and Mr Lloyd were provided with Bluecard training by the defendant prior to the incident. Attached, marked with the letter "B", is a true copy of Mr Lloyd's Bluecard training assessment. 54. After the incident, Bluecard training was provided to other WMF employees who were performing work for the defendant. 55. WMF also provides and ensures its drivers undertake and complete a Certificate III in Transport and Distribution. The training deals with various OHS and operational issues. 56. Both Mr Lloyd and Mr Norman had completed this training prior to the incident. Attached, marked with the letters "C" and "D", respectively, are copies of the certificates of attainment issued to Mr Lloyd and Mr Norman with respect to the completion of the requirements for Certificate III in Transport and Distribution, including a list of the units completed by Mr Lloyd. 57. WMF had, at the time of the incident, an OHS Management System in place, in the form of a written Policy and Procedures manual provided to and carried by all drivers. Attached, marked with the letter "C", is a true copy of the Policy and Procedures manual provided by WMF to all of its drivers. 58. Both Mr Lloyd and David Norman were in receipt of the manual prior to the incident. 59. The defendant had an OHS Management System in place in relation to the company and its sites, including the premises, prior to the incident. 60. On 8 December 2004, Inspector Patton issued Improvement Notice No 270108 requiring the defendant to provide and maintain a safe system of work for those persons required to access the loading dock and to identify, assess and control any risks associated with accessing that loading dock. 11 Following the incident, the defendant made a number of changes to the systems of work as follows: 61. The defendant conducted a risk assessment with respect to semi-trailer movements at the entire premises and implemented a written operational procedure for line haul departures as a result of the findings of that assessment. 62. The procedure implemented by the defendant after the incident provided that after a semi-trailer had been moved forward off each dock and its doors were closed and sealed, the driver was required to give 2 short blasts of the horn and await an all clear signal from the leading hand on the dock before reversing the semi-trailer back into the dock. The procedure also provided that the leading dockhand was to ensure the area behind the trailer was clear and then give a hand signal to the driver before the vehicle was to be reversed. Also, the leading hand was to remain in position, providing guidance to the driver, until the vehicle moved forward and departed the premises. 63. The defendant's site policy requiring pedestrians working or passing through the yard/loading dock areas to wear high visibility vests remained in place after the incident. 64. The defendant vacated the premises on 17 December 2004 in order to move into its new depot at 4 Industrial Road, Unanderra. The new depot was purpose-built by the defendant and has adequate access and exit areas for all vehicles accessing the loading docks, including line haul vehicles. 65. The defendant fully co-operated with WorkCover in its investigation of this matter. 66. The defendant has no prior convictions under the Occupational Health and Safety Act 2000 or associated legislation. 12 Mr H J Dixon SC with Mr T Saunders of counsel, who appeared for the defendant, read an affidavit of Sean Patrick M'Gee who was required for cross-examination. Mr M'Gee is the Director of Branch Operations with the defendant, a position he has held since 2 April 2001. Mr M'Gee described his role, the corporate background of the defendant and the site. 13 Mr M'Gee also described the usual procedures in respect of the loading of semi-trailers at the Depot, stating: On the evening of 2 December 2004, Leon Parr (Mr Parr) was the Leading Hand in charge of the Depot. Since commencing employment with Star Track Express in May 1997, Mr Parr has worked only at the Depot and the New Depot. As part of his respect responsibilities as a Leading Hand, Mr Parr was: (a) responsible for the work being undertaken around the loading dock at the Depot during the afternoon shift (4pm until the close of the Depot). That involved supervising 7 or 8 freight handlers employed by Star Track Express to load and unload freight that arrived at, and was transported from, the Depot during the evening shift. Mr Parr worked on the loading dock with the freight handlers during most of the afternoon shift; (b) responsible for locking up after the Depot had closed; (c) required to and did keep a look out at all times in relation to the movement of vehicles around the Depot; and (d) responsible for ensuring that neither employees or visitors were walking around where the trucks were being loaded, except where such movement was necessary, such as the truck drivers closing and sealing the doors to the trailer of a truck. During the afternoon shift, the Depot was staffed by approximately 8 Star Track Express drivers and 1 Leading Hand at any one time. I am also informed that there were 2 WFM drivers who regularly attended the Depot. The usual daily routine at the Depot as at 2 December 2004 was as follows: (a) The linehaul vehicles would arrive separately at the Depot with loaded trailers in the early hours of the morning and would reverse onto the 2 loading docks, which were located at the southern end of the Depot. Other than the WFM driver of the linehaul vehicle, no person would be present at the time the linehaul vehicles arrived at the Depot. (b) The driver of the linehaul vehicle would open the doors to the trailers before completing the process of reversing against the loading dock. (c) Star Track Express drivers would arrive at the Depot for the first shift at approximately 7am and commence unloading the freight from the trailers onto the conveyor belts on the raised loading dock. (d) Depending on the destination, the freight would then be loaded into respective Star Track Express trucks parked at their allocated run bays for delivery. (e) Star Track Express drivers would then depart from their allocated run bays to deliver and collect freight in the Illawarra region before returning to the Depot. (f) The 2 linehaul vehicles and trailers would remain parked at the docks until the evening. (g) In the late afternoon or early evening, Star Track Express employees would load the trailers of the linehaul vehicles (one at a time). Once the trailers were loaded, the linehaul vehicles would leave the Depot. The usual procedure for loading the linehaul vehicles at the Depot at the time of the incident was as follows: (a) The rear doors of the linehaul vehicles would be opened at the trainer would be loaded with parcels from a conveyor belt located on a raised loading dock. The employees loading the trailer worked on the raised loading dock;

(b) Once the trailer was full, the WFM driver would get into the linehaul vehicle and drive it forward enough to allow room for the doors of the linehaul vehicle to swing shut;

(c) The driver would get out and close the doors of the trailer;

(d) The driver would then go to the office to collect their seals for the trailer doors and have their Sub Contract Payment Voucher signed;

(e) The driver would then seal the doors of the trailer with the seals given to them. The driver was often assisted in the task of sealing the doors by the other WFM driver who was waiting for their truck to be loaded. Once this task was completed, there was no operational need for this driver to remain anywhere near the operations or the vehicles;

(f) The driver would get into the linehaul vehicle and back the vehicle towards the dock to exit the Depot through the sought gage; and

(g) The conveyor belt would then be moved to the next linehaul vehicle that required loading. During the Usual Procedure, the only people on the ground in the vicinity of the linehaul vehicles were the 2 WFM drivers. No other persons were permitted access in the area where the linehaul vehicles were located. 14 Mr M'Gee went on in his affidavit to describe the occupational health and safety management structure at the defendant. He stated that as at the date of the incident, the defendant employed an occupational health and safety manager with three to four persons under the manager who had a general mandate to work on occupational health and safety improvements and who were responsible for identifying and managing risks, recommending and implementing procedures, systems and equipment to improve the defendant's safety systems. 15 At the time of the incident, the defendant provided employees with induction and occupational health and safety training. In addition, the defendant engaged an external training organisation to provide occupational health and safety training (known in the Industry as "Bluecard" training) to drivers employed by third party carriers, such as WFM. Mr Norman and Mr Lloyd and all WFM drivers were provided with "Bluecard" training prior to the incident. Exhibited to Mr M'Gee's affidavit were the following documents: Transport and Distribution (Road Transport) Occupational Health & Safety Procedures (TDT F1 97B) - blank version of bluecard assessment book; TDT F1 97B completed by Mr Lloyd; bluecard training documentation; document showing results of bluecard training for WFM employees; training attendance record for WFM employees; induction checklists for induction at the Depot; pedestrian movement policy; safety vest policy; company policy on personnel protective equipment and clothing; memorandum to all staff regarding safe loading and unloading of trailers; bluecard attendance sheet (Mr Norman); bluecard attendance sheet (Mr Lloyd); facsimile from WFM of all its employees who were available for bluecard training; course notes provided to trainees at the bluecard training (including in relation to pedestrian movement and safety vests). 16 Additional occupational health and safety training was provided to employees at the Depot prior to the incident which included safe lifting and warm-up techniques; correct loading and unloading of vehicles; forklift awareness; hazard reporting, posture and seat adjustment. The defendant also had an occupational health and safety manual at the time of the incident which set out the company's priority in respect of safety and its occupational health and safety goals. The defendant conducted occupational health and safety audits at its depots on an annual basis. A copy of the audit report for June 2002 was exhibited to Mr M'Gee's affidavit. 17 The safety measures that were in place at the Depot at the time of the incident included: (a) High visibility safety vests were issued to all employees and subcontractors that accessed the Depot. It was Star Track Express' policy that safety vests were required to be worn for all areas other than on the raised loading docks and in the offices. I am advised that the WFM drivers were informed during their induction training that wearing safety vests was Star Track Express' policy at all of its depots; (b) Safety signs, such as those indicating pedestrian and forklift areas were placed around the Depot; (c) Signs were erected directing people to the office and to the car park, so that visitors to the Depot did not accidentally walk in the way of the line-haul vehicles or forklifts; and (d) Yellow safety paint was used to indicate pedestrian walk-ways, forklift routes and the ramps that the line-haul vehicles used. 18 The defendant, at the time of the incident, had in place occupational health and safety committees at its depots. At smaller depots such as the depot where the incident took place, there were yard committees which had a less formal format than the larger depots' safety committees. 19 Mr M'Gee gave evidence of being informed of the incident of involving Mr Lloyd. He spoke to Mr John Peters, the owner of WFM and representatives from the Transport Workers' Union. On the day after the incident, Mr M'Gee drove to the Depot and at around 6.00 am and conducted a briefing session on the incident with employees who were working at the Depot at the time and offered support and counselling services. At around 10.00 am he met with Inspector Greg Drain from WorkCover and provided a statement to him on behalf of the defendant. He subsequently met with Mr Sullivan, the Occupational Health & Safety Manager and Mr Bradley, the Branch Manager for the defendant at Wollongong, to discuss what safety procedures should be implemented to ensure that the incident would not be repeated. The defendant offered to provide WFM with any assistance Mr Lloyd's family required and to pay for counselling for any employees who sought it. 20 Mr M'Gee went on to describe the occupational health and safety procedures implemented following the incident as follows: Immediately following the incident, Star Track Express implemented the following procedures: (a) a new loading procedure whereby the trailer that was parked at the southern most loading dock of the Depot would be loaded last; and (b) a revised traffic flow system whereby line haul vehicles would only exit the Depot from the north gate. This was facilitated by the new loading procedure referred to in the previous subparagraph. The combined effect of these two procedures was that there was no need for any line-haul vehicle to reverse towards the loading dock to exit the Depot. Also immediately following the incident, Star Track Express implemented a new written work procedure which required the driver of a line haul vehicle to: (a) use the horn in his prime mover to indicate that the vehicle was preparing for departure; and (b) await an all-clear signal by a designated person (either the leading hand or the supervisor working at the Depot) who could see both the driver of the vehicle and the area behind the vehicle before reversing the vehicle (if there was a need to reverse the vehicle). All employees at the Depot and drivers who visited the Depot were trained in the new work procedures. On 17 December 2004, Star Track Express relocated Unanderra Depot to the location of the New Depot, which was in the final stages of commissioning prior to the incident. The New Depot is purpose-built for Star Track Express and has been designed such that trucks do not need to reverse back to the dock after they have loaded in order to leave the New Depot. ... Since the incident, Star Track Express has increased its occupational health and safety expenditure. In particular, each of the eastern States has an OHS team of 4 or 5 employees, while the other States each has a dedicated full time OHS manager. Star Track Express has employed a National OHS Manager (who reports directly to the finance director and the company secretary). OHS-related expenditure in 2006 - 2007 included: (a) Salary costs for increased OHS teams nationally - $1,098,106 (b) Safety supplies - $140,003 (c) Training - 13,072 (d) New high visibility uniforms (being rolled out) - $506,000 (e) Other personal protective equipment (as at June 2006) - $130,000 ... Star Track Express' current OHS initiatives include: (a) a 2-day OHS training program (out of the field) is conducted bi-annually for the dedicated OHS employees; (b) additional training for Star Track Express management on OHS duties and responsibilities was completed in the last few months; (c) the roll out of new high-visibility uniforms; (d) the roll out of the Safe ROAD (Risk Observe Act and Discuss) Program. This program is aimed at focusing on behaviour to further improve safety within the depots. 21 Evidence was also given by Mr M'Gee regarding the defendant's corporate citizenship which indicated a strong involvement in supporting the local community. The defendant annually donates, on average, $78,420 to support local charities, sporting and community groups. The defendant also established a trust fund for one of its drivers who had gone to the aid of a female motorist whose car had crashed on the M4 motorway. Whilst assisting the motorist, another truck and some cars ran into the driver causing injuries which resulted in the driver losing both his legs. The defendant matches dollar for dollar contributions made by employees and the public. The defendant also donates its services by collecting and delivering freight without charge for charitable organisations. It also provides best practice support to employees and their immediate families in respect of drug and alcohol problems, divorce and relationship problems, employee assistance schemes and financial assistance. 22 Mr M'Gee, on behalf of the defendant, expressed his deepest regret and remorse for the incident which resulted in the loss of Mr Lloyd's life and the impact that it has had on his family, friends and workmates. 23 During cross-examination, Mr M'Gee acknowledged that he had been unable to locate documentation in respect of Mr Lloyd undertaking the induction process. His evidence was that he had spoken to a previous manager who worked at the site who had informed him that Mr Lloyd had undertaken the induction process. He was also not able to locate the site safety plan that was in force for the Unanderra Depot at the date of the subject incident. Relevant Principles 24 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide 'further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 as follows: [I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: 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 Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (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 Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Consideration 25 I will commence the consideration of penalty by having regard to the principles stated above and examining the nature and quality of the offence. In order for a semi-trailer to leave the southern loading dock at the defendant's Depot at Unanderra, the driver was required, after initially moving the semi-trailer forward, to close and seal the doors of the trailer, to then reverse the trailer towards the loading dock so as to enable it to exit through the Depot's southern gate. It was the reversing of the semi-trailer that gave rise to a risk to employees and contractors who may have been on the ground between the reversing semi-trailer and the loading dock. The defendant, by its plea, has acknowledged that it failed to ensure that it had a traffic and pedestrian management plan in existence at the Depot in respect of semi-trailers reversing into a loading dock. 26 Mr Dixon submitted that the charge was confined to line haul vehicle drivers and that it did not relate to every person who may be on the site. I accept that the charge is a narrow one concerned with persons who, on the evidence, were well trained, experienced, and performing a task that they were familiar with in circumstances where there is no explanation given as to why the driver of the vehicle that caused the incident did not make the appropriate checks. Furthermore, there is no explanation as to what caused Mr Lloyd to have put himself in a position of being effectively behind the semi-trailer. The evidence discloses that the semi-trailer was fitted with a piece of equipment which is clearly designed to give a warning sound when the vehicle is in the process of reversing. There is evidence that this piece of equipment most likely malfunctioned at the time (see paragraphs 22 to 32 of the agreed statement of facts). 27 I accept that the alarm was clearly part of a system that WFM had in place in its vehicles to warn people about a vehicle reversing. The alarm's failure was a matter over which Mr Norman had little control if it occurred on the day of the incident. It was also an agreed fact that there was no known operational reason for Mr Lloyd to be between the semi-trailer and the loading dock whilst it was reversing. 28 Mr Dixon submitted that in circumstances where the drivers knew that semi-trailers reversed from the southern dock in order to exit the Depot and that the defendant was also aware that semi-trailers reversed did not mean that the risk was foreseeable because the drivers were aware of the system utilised by drivers to exit the Depot. It followed, so it was submitted by Mr Dixon that for one or more of the drivers to put themselves in a position where the risk would materialise was extremely remote. I reject this submission. In my view, the risk was obvious and foreseeable. The defendant was aware of the requirement for a semi-trailer leaving the southern loading dock of the Depot being required to reverse into the dock in order to exit the Depot. It was also aware that drivers assisted each other placing the security seals on the closed doors of loaded trailers. That the risk was foreseeable is further demonstrated by the simple procedures introduced by the defendant after the incident which were designed to eliminate the risk. These included a new loading procedure whereby the trailer parked at the southern most loading dock would be loaded last; the use of the horn to indicate the vehicle was preparing to depart and the use of a designated person who could see the driver and the area behind the vehicle was clear before giving a hand signal to the driver that it was safe to reverse. 29 The risk that arose in respect of this incident would have been completely removed if the defendant had had in place a system which precluded any persons being on the ground when a semi-trailer was reversing. 30 As I recently observed in Inspector Christensen v Ravey Pty Ltd [2007] NSWIRComm 109 at [39] - [41]: Accepting that there may have been a degree of aberrant behaviour on [Mr Lloyd's] part it is well settled that an employer's obligation is to ensure the health and safety of its employees and contractors. This obligation extends to the hasty, careless, inadvertent, inattentive or unreasonable employee and contractor. This is a facet of the pro-active nature of the duty described in such forceful terms by Hill J in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 where his Honour said "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time at the workplace". See also Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 the majority held: [45] The duty to provide a risk-free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248. [46] We agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 (at par 15) as follows: "The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: 'Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.' " (See also WorkCover Authority (NSW) (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 722). And later at [48]: The employer must also guard against acts of inadvertence to the fullest extent practicable: Inspector Ankucic v Naomi Cotton Co-operative Ltd (unreported, 97/2251, 14 July 1998, Hill J). We note in this respect the observations of the Full Bench in Australian Grader Hire (at par 16) as follows:

"Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: 'In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p 44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8)'." Whilst the consequences of an accident will not, of itself, dictate the seriousness of the offence, the occurrence of serious injury, as occurred here, manifests the degree of seriousness of the risk to health and safety: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [31] - [33] and the cases referred to therein. 31 It cannot be assumed that because a worker (or a contractor) and in this case, an experienced worker, has received extensive training and instruction in relation to safety procedures that such training and instruction cancels out the possibility that he will place himself, or another worker at risk. As has been often stated by Members of this Court, the obligations on an employer under the Act requires that employers actively search out and where it is at all possible, eliminate any risk to health and safety. Simple and straightforward measures could have been taken by the defendant, which would have eliminated the exposure to the risk. The consequences of the defendant's failure were the loss of Mr Lloyd's life. As was observed in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94]: ... 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. ... 32 Although I accept that the conduct and responsibility of third parties, such as the drivers employed by WFM, mitigates the objective seriousness of the offence: Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143 at [15]; Inspector Woodington v Thiess Services Pty Ltd (No 2) [2004] NSWIRComm 126 at [10], the circumstances outlined above make this a serious offence. 33 There is also the particular aggravating factor of the serious injuries suffered by Mr Lloyd which resulted in the loss of his life: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 34 In respect of the mitigating factors to which attention is required by reason of s 21A(3) of the Crimes (Sentencing Procedure) Act, I take the following factors into account. 35 Section 21A(3)(b), s 21A(3)(e) and s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 provide: 21A Aggravating, mitigating and other factors in sentencing ... (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (b) the offence was not part of a planned or organised criminal activity, ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, 36 Mr M'Gee's evidence demonstrated that the defendant is constructively and beneficially involved in the local community. It is, in my view, entitled to a measure of discount to reflect its good general citizenship. I also find that the defendant has a very good record, particularly when considered in the context of its size and the nature of the organisation. 37 Section 21A(3)(g) and s 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides: ... (g) the offender is unlikely to re-offend, ... (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, ... 38 The defendant has closed the depot where the incident occurred and relocated to new premises. It has an impressive array of safety systems in place, which lead to a finding that the offender is unlikely to re-offend. The defendant accepted responsibility for the incident and the death of Mr Lloyd and has expressed its deepest remorse. This is a factor to be taken into account in its favour. I also take into account the defendant's contrition and strong commitment to occupational health and safety. 39 Section 21A(3)(k), s 21A(3)(l) and s 21A(3)(m) of the Crimes (Sentencing Procedure) Act provide: ... (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). 40 The defendant entered an early plea of guilty and it is acknowledged by the prosecutor that the defendant co-operated with the WorkCover Authority. I propose to allow, consistent with the approach adopted by Members of this Court when considering the utilitarian value of an early plea, a discount on the penalty of 25 per cent for the early plea. 41 In respect of general deterrence, the defendant accepts that in respect of offences of this nature, it is generally the case that the penalty to be imposed includes an element for general deterrence. However, it respectfully submitted that given the circumstances in which the incident occurred, the factors that contributed to the incident and the defendant's very good safety record, the Court should not visit upon it a higher penalty as a means of potentially deterring others. 42 The authorities (see for example Capral Aluminium Ltd v WorkCover Authority of New South Wales at [71] - [80]; Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 at [16] - [17]), confirm that both general and specific deterrence feature prominently in criminal matters. It is important to convey to employers operating in the freight haulage industry, which is no doubt a large industry in New South Wales, the full extent of their obligations under the Act. The reversing of trucks into loading docks occurs throughout the freight haulage industry on a daily basis. In making these observations, I acknowledge that it is clear from the evidence that the defendant strongly promotes general awareness in respect of safety and the need for vigilance by its managers, employees and contractors alike. I propose to include a significant element in the penalty for general deterrence as it is appropriate to bring to the attention of those operating in this industry the risks associated with it. 43 In relation to specific deterrence, I accept the defendant's submission that this is not a case where there is any need for the penalty to be framed so as to require attention of the defendant to be drawn to the need to address safety issues. The defendant has an excellent safety record and has measures in place demonstrating its commitment to occupational health and safety so that its employees and visitors to its depots are not exposed to risks. Remedial steps were taken immediately following the incident to ensure there could be no recurrence of the risk. As I have already observed, the defendant vacated the Depot shortly after the incident and moved to a new purpose built Depot in the Illawarra region. The new Depot has a different physical configuration which allows trucks to leave the site without first having to reverse towards the loading dock, thereby removing the risk which gave rise to the accident in the present case. However, the defendant remains an employer operating in a high-risk industry. I therefore propose to include an element in the penalty in respect of specific deterrence. 44 Mr Dixon referred the Court to a judgment of Kavanagh J in Inspector Robert Egan v Coles Supermarkets Australia Pty Ltd trading as Coles Supermarkets [2006] NSWIRComm 7. In this matter, Coles Supermarkets pleaded guilty to a breach of s 8(2) of the Act in failing to maintain a traffic management plan that ensured non-employees were protected from the risk of injury of being struck by a loading truck. In this case, a contractor suffered substantial injuries when crushed between the back of a truck and the edge of a loading dock. The defendant's record disclosed seven prior convictions which had been determined before the Chief Industrial Magistrate. Her Honour imposed a fine of $130,000. Mr Dixon accepted that each case must be determined on its own facts and circumstances. However, senior counsel submitted that the Court would have regard to cases of a similar nature. As was observed by the Full Bench in Nelmac Pty Ltd v Franke (Inspector) (2006) 151 IR 63 at [24] - [27], the Court should be reluctant to place reliance on comparative sentencing material in the sentencing process. Accordingly, I do not propose to place any reliance upon the judgment in Coles Supermarkets. 45 The maximum penalty in this case is $550,000. Given that the defendant has no prior convictions, I consider an appropriate penalty, taking into account the circumstances set out earlier in these reasons is $150,000. 46 The prosecutor sought costs and moiety of the fine, which I propose to order. ORDERS 47 The Court makes the following orders: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $150,000 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, leave is granted to either party to approach the Court for final orders as to costs.

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